Wills

Why don’t more people have wills?o Empirical studies show some people don’t want to talk about their own mortalityo Procrastinationo Difficult making decisionso Hardest to decide who takes over

UPC – Uniform Probate Code – Adopted by many states. Florida is different. Where does property go without a will? Through intestacy. Terminology

o Real Property – Land and the buildings attached theretoo Personal Property – Anything that isn’t real property (defined by exclusion)

Tangible – Property you can touch (i.e. pen, book) Intangible – (i.e. stocks, bonds)

o Old Terminology (i.e. Last Will and Testament) Will – Real Property Testament – Personal Property

o Will – Serves many functions: Disposes of testators property, revoke a prior will, appoint a personal rep, and serve other objectives.

Real Property – Land, Buildings, and the things affixed hereto. o Die with will v. die intestate (without will)o Decedent

Testator – Man who dies with a (valid) will Testatrix – Woman who dies with a will Intestate decedent (or simply intestate) – Person who dies without a will

o Recipient Devise – Transfer of real property through a will (recipient: devisee)

Can refer to real and personal property now as a devise. If the judge makes the distinction between devise and legacy, use legatee.

Legacy – Transfer of personal property through a will (recipient: legatee) FL – Devisee – The recipient of anything through a will Heir (at law) – Receive real property through intestacy Next of Kin – Receive real property through intestacy FL – Beneficiary (both devisee & heirs)– Receive real property through

intestacy. o Personal Representative

Executor/Executrix – Administers with will Administrator/Administratix

Will Intestate (w/o Will)

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Decedent Testator/Testatrix IntestateRecipient Devisee (real prop)/Legatee (personal prop) Heir (real) /Next of Kin (personal)

In FL -> DEVISEE In FL –> HEIR

In FL –> BENEFICIARY is anyone who receives prop under either will or intestate

Will Intestate (w/o Will)

Personal Rep Executor/Executrix Administrator/Administratix

In FL -> PERSONAL REP = administers the probate estate (either thru will/intestate)

o Probate v. Administer Probate – A distribution of assets of a deceased (either through the will or

the intestacy statute) transfer of property by the decedent at death Probate property goes through the will/intestacy process. Probate serves, in part, to transfer title from the decedent to someone else. Not all property is probate property. If it was not property held by the

decedent it is not probate property. Nonprobate property also referred to as will substitutes. Outside the

probate process. Common types of nonprobate property (p. 19) – Automatic in the

Survivors:1. Survivorship Property – Property held as Tenancy by the entirety

(TBE) or Joint Tenancy with right of survivorship. Distinguish among TIC (no right of survivorship), JT, and

TBE (only JT and TBE include the feature of right of survivorship) ***MAKE SURE TO KNOW THE DISTINCTIONS – ADD***

Compare Concurrent Estates JT; TIC; or TBEo Joint Tenant can convey but can’t devise/transfer

at death because of survivorship feature (i.e. A, B, & C are joint tenants) B dies A & C get property. FL has a presumption of TIC when two persons are not married therefore if you want the property to be held with “right of survivorship”, these words must be used in the document conveying the property. F.S. § 689.15 (right of survivorship).

o Tenancy in Common can convey and devise/transfer at death is a probate property. When A dies, a valid will would be consulted. No valid will, intestacy statute would apply.

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o Tenants By the Entirety one spouse can’t convey (w/ out the other) nor devise/transfer at death because survivorship, not probate property.

FL Stat. 689.15 Estates by Survivorship – If you want to include a joint tenancy, you have to expressly provide “right of survivorship.” If not it would be a tenancy in common.

2. Life insurance proceeds where the decedent’s estate is not the beneficiary because it is not a transfer of property by the decedent at death. (contract between Insured/Owner & Insurance Company) (Recognized 3rd party beneficiary contract/contract between two people for the benefit of a third) Not a property transfer, there is no property held by the decedent so there is no probate. THIS IS A CONTRACT RIGHT, NOT A PROPERTY RIGHT.

Parent’s Policy o Face Amount $500,000 Primary Beneficiary:o Spouse

Secondary Beneficiary (should the spouse not be alive.)

o Childreno Proceeds can become probate property if the spouse

and the children had died before the insured and the policy was not changed or the named beneficiary dies with the insured. Proceeds would then be paid to the estate to go through the will or probate process.

FL Stat. 222.13 Life insurance policies; disposition of proceeds – Exempt of claims of creditors of decedent

3. Pay on Death (POD); Transfer on Death (TOD); and In Trust For (ITF) accounts (In FL and most states – Statutes control process)

POD (bank accounts) TOD (securities accounts and ITFo (death payment designation is a contract between

account owner and financial institution. It is a K right and therefore not probate property)

If designated beneficiary predeceases – then it is probate property.

4. Pension plans (e.g., IRAs, 401Ks) – the interest automatically vests to the named beneficiary and is a nonprobate property.

5. Annuities6. Intervivos Trusts – This is created when the person is still alive.

Since the trustee has the title already (already transfered) then there is no need for probabte. The decedent’s death is irrelevant since the decedent’s death doesn’t affect transfer because it transfers during life.

7. Powers of Appointment - Power to distribute, not a property interest.

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8. Homestead9. Wrongful Death Benefits – 768.20 & 768.21

WHAT HAPPENS IF A PERSON DIES W/OUT A WILL? It goes through a process which is controlled by the State’s intestacy statute.

Intestacy – Spouse and Descedants

The Probate Assets are not the same as Estate Assets for Estate Tax purposes. SEE LAST PAGE OF CHP 1 FOR A REFRESHER.

Probate Assets o State law concept o Tells you which assets go through the probate process and are administered either

through a will or intestacy (transfer of property of decedent at death)o Property that passes by will or by intestacyo Different between probate estate and the gross estate for federal income tax

purposes. Gross Estate Assets – Much larger than probate estate

o Federal tax law concept, not a state law concept, and is much bigger than probateo Includes more than just probate assetso Probate assets + assets in which the decedent had a particular interest (probate

estate and certain non-probate property when decedents had incidents of ownership of certain power)

*DISTINCTION BETWEEN PROBATE ASSETS AND GROSS ESTATE ASSETS

Nonprobate Assets – Life insurance (contract), 401 K, intervivos trusts, joint tenancy and survivorship property, retirement, homestead

o (e.g., Insurance proceeds not probate but if insured had “incidents of ownership” then proceeds part of Gross Estate for estate tax)

o Incidents of Ownership – Certain rights in the insurance policy. Includes many powers of the insurance policies including the right to change beneficiaries. Ex. right to borrow from the insurance policy.

Intestacy – Why does decedent’s property/assets go through intestacy?o Decedent never wrote a Willo Attempted Will deemed invalid

(e.g., improperly executed, undue influence, lack of capacity, fraud, etc.)o Will revoked by the testator if will is revoked properly, decedent dies intestateo Could have Partial Intestacy – Decedent has valid will that doesn’t dispose of all

probate assets. No residuary clause – All of the rest of the estate goes to A. No living beneficiaries to take residuary property (residuary devisee

predeceased testator – and anti-lapse statute does not apply) o Hypo : D had a will that said artwork to F and rest of estate to G. G

predeceases D, so there is partial intestacy – unless G falls within

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the category prescribed under the anti-lapse statute and G also has decedents – in that case, G’s decedents would take under antilapse. F still gets artwork, but there is no one to take residual assets, so they go to state’s intestacy statutes.

Can try to block intestacy from happening by telling client that if there is any major event (birth, death, divorce) to notify an attorney to make a change in the will. A backup residuary devisee (usually a charity) can also be used or an intervivos trust.

o Decedent can die and give everything to charity; or have residuary go to a trust

o If die w/ out valid will, state’s intestacy statute governso FL Stat 732.101 Intestate estate: only applies to probate assets (does not include

valid will, annuities, IRAs, etc.) – probate estate is different from gross estate (which includes insurance proceeds, etc.)

o FL Stat 732.102 Spouse’s share of intestate estate Who is a surviving “spouse?” A spouse is a legally recognized marital relationship.

o Yes – surviving spouse: Married at death Even if Separated, even if legally separated Even if in process of divorce

o Not – surviving spouse: Divorced Annulled 741.211 - No common law marriage in FL Common law marriages entered into before 1/1/68, shall be valid... Putative spouse – gives spousal recognition to those who IN GOOD

FAITH believed they were married.

Hall v. MaalMs. Hall and Dr. MaalCouple was engaged, planned to get married, had a ceremony but did not officially record the marriage. They had children and lived together as husband and wife. Ms. Haal filed for a petition for dissolution of marriage and Dr. Maal moved for dismissal based on the nonexistence of the relationship. Since there is no common law marriage in FL Ms. Hall would have to find an exception to this rule.

COMPARED to Estate of Litzky and found the case was indistinguishable with this case wherein it was decided that Religious ceremony was NOT ENOUGH.

COMPARED to Metropolitan Dade County v. Shelton ceremony on weekend, license finally issued Monday, same notary and witnesses and error by judicial clerk. This case was distinguishable since Ms. Hall DID NOT ACT IN GOOD FAITH and she knew for a fact they were not married since she never filed the paperwork and she also filed her tax statements separately.

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In unusual cases Estoppel prevents a spouse from taking from deceased spouse’s estate Estoppel – Complete repudiation of the marital relationship by the person who is

claiming to be the spouse later on (e.g., typically, party was married and entered into bigamist relationship and tries to claim surviving spouse)

Example : Person enters into marriage with Husband 1, then enters into bigamist marriage with Husband 2, then when 1 dies, they claim to be spouse of H1. Court says that by entering into bigamist second relationship, they are estopped from receiving anything from Husband 1.

o Estoppel to claim of spouse In re Estate of Butler p. 301946 1947 1950 1963Georgia Mae They separate Georgia Mae Nathaniel& Nathaniel He says he marries marriesButler gets “bought” a James Rosamarried divorce Whitfield Belle

Georgia Mae, thought she was divorced based on Nat “buying” the divorce.

Nathaniel and Rosa Belle have a child and adopt a child. Both are minors at Nathaniel’s death

Georgia Mae then has more kids and is known as Mrs. Whitfield Case about applying the doctrine of estoppels to prevent Georgia Mae

Butler from claiming to be a surviving spouse of Nathaniel Butler His children and Rosa Belle receive the estate. Who in that case could have made a claim as a putative spouse? Someone who cohabitated with another in the good faith belief that they

were married Rosa Belle could make a good argument of putative spouse since she

believed she was married. Court says that Georgia Mae’s good faith belief in her current marriage,

repudiates her marriage to Butler Doherty v. Troxler

o Husband abandons wife after 24 hourso Husband married wife to acquire an interest in her propertyo Never consummated by cohabitationo Husband later intentionally entered into a bigamous relationshipo Court said there was a complete repudiation of marriage

Minor v. Higdono Prevented a surviving wife from claiming under her deceased

husband’s estate where the wife had remarried without obtaining a divorce from the husband, she said she didn’t know she wasn’t divorced but no excuse for contracting a bigamous marriage relationship with 2nd husband – you can’t reep benefits of the divorce such as remarrying and having children with a new spouse and then attempt to reep the benefits of the decedent based on still being married to the previous spouse.

o Not a spouse if divorced, if marriage to decedent was annulled, or if estoppels applies

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Estoppel-look for complete repudiation of marital statuso What about entering into a marriage originally?o Common Law marriage is not recognized in FL, but some other states still do. o FL Stat 741.211 Common Law marriage is void after 1968o Fl Stat 741.211 – Does not recognize common law marriage but does recognize

Putative Spouse. Putative spouse thought they had entered into a marriage in good faith and took substantial compliance with this chapter (how you get marriage license and what you do with it). Living together is not enough, since common law marriage is abolished.

o No common-law marriages entered into after Jan. 1, 1968, shall be valid except that

o Nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter (putative spouse)

o If you have a client who lives with someone and they are not married, the intestacy statutes will not protect them. What should they do if they want to make sure at their death that their loved one gets their assets? They could set up a life insurance contract, an intervivos trust, name them as beneficiary as non-probate assets, put property with right of survivorship, or write a will.

o Spouse Status – Except for estoppel and spouse status remains even if separated or in middle of a divorce but it is not finalized.

o Hall v. Maal (TWEN Case) Pre-nup not done so didn’t get license before ceremony Had wedding ceremony anyway 1 year later applied for license but never filled it in Lived together and had 2 children Were they married? Wife was arguing that she fit into the exception of

statute and was a putative spouse Court focused on substantial compliance requirement and reasoned that:

There was no substantial compliance because wife knew everything that was required of her and didn’t do it. some compliance would, at minimum, entail the parties applying for and receiving a license”

o Problem 1 H dies intestate H predeceases W H’s parents dead H & W had no children H had $500,000 in assets FL How much would W get under FL intestacy statute?

FL Stat 732.102(1) wife gets full $500,000 If there are no descendants the wife receives the full amount.

o Problem 2 H predeceases W H’s mom alive

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Again H & W had no children H had $500,000 in assets FL How much would W get?

FL Stat 732.102(1) wife gets full $500,000 UPC – §2-102 – Parent would retain some amount.

o Problem 3 H predeceases W H & W have 1 child, C1 Neither H nor W have any other children H had $500,000 in assets FL How much would W get?

FL Stat 732.102(2)o W gets $500,000 – FULL AMOUNTo How much would C1 get? Fl Statute 732.102(2) – NOTHING C1 would get Nothing THIS IS A CHANGE the CHILD USE TO

GET SOMETHING.

o UPC – 2-102(1)(ii) – all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent – Wife receives all of the estate. Assumes the surviving parent would take care of the children. Risk – The surviving spouse may get remarried and have more children and a new spouse and the child of the first marriage may not get what the decedent would have wanted.

o Problem 4 H predeceases W H & W have 1 child, C1 H has a child from a previous marriage C2 H had $500,000 FL How much would W get?

FL Stat 732.102(3) W gets $250,000 How much would C1 & C2 get? – 732.103(1) Share the balance ($250,00 each child gets $125,000)

o Problem 4 Variation H predeceases W H & W have 1 child, C1 W has a child from a previous marriage, C2 H had $400,000 in assets FL How much would W & C1 get?

$200,000 $200,000

o Stepchild does not take under intestacy What if no spouse or lineal descendants?

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o Parents 732.103(2) – If there is a father or mother they get to split the entire estate equally and if only one survives then they get the whole estate (or to the survivor of them language in statute)

o What if no spouse, no lineal descendants, and no parents left? Brothers and sister of the decedent and their descendants.

Siblings and their descendants (nieces & nephews) 732.103(3) What if no spouse, no lineal descendants, no parents, and no siblings or their descendants

left? Divide estate – ½ paternal grandparents and ½ maternal grandparents

732.103(4) – even if only one grandparent alive from maternal, they get 50% and the other 50% goes down the paternal grandparent’s descendants

Grandparents then descendants of grandparents 732.103(4) (not siblings of grandparents)

o What if none of the above around? Last Deceased spouse’s relatives (kindred) 732.103(5). (The

in-laws/kindred of the deceased spouse as if the deceased spouse survived the deceased and died intestate, but not if they are divorced because then they are not a spouse.)

o After that Then Escheat to FL 732.107

o Spouse 732.102 Problems 1: H Predeceases W. H & W have child, C1. W has a child from a previous

marriage, C2.o 732.102(2) Spouse gets $165,000 o 732.103(1) - C1 gets the other half ( $165,00) because W had a child from a

previous marriage therefore C1 gets half (whereas without the child from the previous marriage, C1 would get nothing until him mom dies).

Problem 2: H, who was single and childless, died intestate. H was survived by the following: mother, 2 sisters, Uncle Fred. Uncle Fred was the only sibling of H’s father who died last year. Under Florida law how is H’s intestate estate distributed?

o 732.103(2) – If there is no descendant, the estate goes to the descendant’s father and mother equally, or to the survivor of them. 100% of the estate would go to the mother.

Problem 3: H was survived by his maternal grandmother and maternal grandfather and his Uncle Fred. Uncle Fred was the only sibling of H’s father who died last year. H’s maternal grandmother and grandfather take 50% and Uncle Fred takes the remaining 50%.

Intestate Distribution Systemso Different representational intestate systems:

1. Per Stirpes “by the roots” divide immediate among person below who exists (FL) – DIVIDE AT THE BEGINNING REGARDLESS IF THE ROOTS ARE NO ALIVE.

2. Per Capita with Representation “by the head” start splitting at generation nearest descendent with at least one living member

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3. 1990 UPC (per capita with a twist) - start at generation nearest decedent with at least one living member & pool – POOLING FUNCTION AT THE END.

***2 Basic Rules apply for ALL Distributional Systems Rule #1 – A descendant cannot take if he/she has a living ancestor

who is an eligible takero e.g., Maternal grandmother dies and mom alive,

grandchildren are not an eligible taker under any intestacy statute

Rule #2 – Disregard anyone who died without issue (descendants). o e.g., Mom had 3 kids but one predeceased leaving no

children. Two living children each get ½o Family Tree P. 37

Per Stirpes: FL Albert, Ed, & Bob predeceased Isabelle $600,000 to distribute

Albert (½) $300/000 & Ed (½) $300,000 Bob, Carol, and Diane (Albert’s children) each split Albert’s ½ each get

1/3 & Elen gets Ed’s (½) – If Carol predeceased, she would be disregard, split between Bob and Diane (Carol’s siblings)

Barbara and Bill (Bob’s children) split Bob’s 1/3 and each get 1/6 Per Capita w/ Rep.: $600,000 Albert, Ed, & Bob predeceased Isabelle Start with Isabelle’s grandchildren Bob, Carol, Diane, and Ellen each get ¼ Barbara & Bill (Bob’s children) split Bob’s ¼ and each get 1/8 Here grandchildren are treated equally.

Variation Ellen also predeceased Per Stirpes FL $600,000 to distribute Emma gets $300,000 (½) ½ Albert Carol, Bob, & Diane get $100,000 (1/3) Bob is dead so his money gets split in half $50,000 each for Barbara &

Bill (Bob’s children) Variation Ellen predeceases Per Capita w/ Rep. Start at generation nearest descendent with at least one living member Bob, Carol, & Diane, and Ellen each get $150,000 (1/4) Ellen is dead so Emma (Ellen’s daughter) gets Ellen’s $150,000 Bob is dead so Barbara and bill split his $150,000 and each get $75,000

Variation Ellen predeceased 1990 UPC $600,000 to distribute Start at generation nearest decedent with at least one living member &

pool what would have gone to that generation and separate among descendants. If you have more than one deceased member of a generation with descendants you pool the money and split amongst the next generation who have no one in the surviving generation.

Carol (1/4) $150,000 and Diane (1/4) $150000 Barbara & Bill each get $100,000 and Emma gets $100,000 (pooled

grandchildren’s $300,000 and split)

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Variation: Ellen, Bob and Carol predeceded. Per Stirpes Florida $600,000 to distribute.

$300,000 to each Albert and Ed. Do not skip a generation just because they are deceased. $300,000 on Ed’s side goes to Ellen. Ellen is deceased so it goes to Emman.

The other $300,000 goes to Albert who is deceased. Next it is divided by his living children or deceased children with descendants, Bob and Diane who each get $150,000. Since Carol has no descendants she does not receive anything. Bob is deceased so Barbara and Bill each receive $75,000.

Variation: Same Facts as above but per capita. Diane gets 200,000. Emma 200,000. Barbara and Bill each receive 100,000. 1990 UPC System. Skip Albert and Ed generation. Carol has no descendants so it is only divided by 3. Diane keeps the money. Pool Bob and Ellen’s assets together and divide by 3.

Reviewo 2 Rules of Distribution

(1) Living ancestor blocks descendants(2) Someone who dies without issue is disregard

o Types of Distribution 1. FL Per Stirpes – divide immediate among person below who exists (FL)2. Per Capita – start at the generation with at least one living member3. 1990 UPC – start at the generation with at least one living member and

POOL Who is a “descendant?”

o Legally recognized parent-child relationshipo Adopted Childreno Modern trend – treat the adopted child as if he/she had been born into the

adopting family cutting off any ties to the birth parent & biological family. o 732.108

Adoption cuts off inheritance by or from birth (natural) parents with certain exceptions

Stranger adoptions on require 732.108(1) Exceptions - 732.108(1)(a) Adoption of a child by the spouse of a natural

parent has no effect on the relationship between the child and the natural parent or the natural parent's family.

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Exceptions - 732.108(1)(b) Adoption of a child by a natural parent's spouse who married the natural parent after the death (marriage must occur after the death of the natural parent) of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

Exceptions - 732.108(1)(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents.

63.172(2) - For purposes for this subsection, a close relative of a child is the child’s brother, sister, grandparent, aunt or uncle.

Exceptions come into play for adoption with remarriage.READ STATUTE CAREFULLY – SEE HIGHLIGHT 732.108(1)(b) – Marriage before the death of the natural parent and the adoption after the death will cut off the child from his natural parent...this is screwy

Kay v. Swartz (In re Estate of Kanevsky) Pg 42Jacob dies without a spouse or decedents or parents. Therefore we must skip 732.102 and go to 732.103 (other heirs). Pursuant to 732.103(3) it goes to Jacob’s siblings and their decedents. Paul and Zena are the decedents of the sibling (Nathan). Zena predeceased Jacob therefore it would go to her decedents. Perry is the adopted child of Zena and survived her and therefore it goes to Perry pursuant to 732.108. However, after Zena’s death her husband remarries and his new wife adopts Perry. Pursuant to 732.108(b) an exception is created and therefore Perry is still entitled to the estate of Zena.

Notes & Questions P. 52-53o Problem 8(f) & (b) p. 53 – Felix have child Charles. Felix dies. Millie remarries

(Felix’s death precedes remarriage). Henry adopts Charles. George (Felix’s father) dies intestate.

George

Henry Millie Felix

Charles Can Charles inherit from George under FL law?

o Yes, exception in Section 732.108(1)(b)o It is not 732.198(1)(a) would mean that Henry adopting Charles

would not have any affect between Charles inheriting from Millie. It is not going to block from the other natural parent assuming the other natural parent has not given up their rights.

o Problem 8(f) & (b) p. 53 Variation – Felix and Millie have child, Charles. Millie and Felix divorce. Felix dies. Millie remarries (Felix’s death precedes remarriage). Henry adopts Charles. George Dies.

Can Charles inherit from George under FL law? Yes, exception in Section 732.108(1)(b) Only requirement is that she must marry the new man after the

father’s death.

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o Problem 8(f) & (b) p. 53 Variation – Felix and Mille have child, Charles. Millie and Felix divorce. Millie remarries. Felix dies (Millie’s remarryiage precedes Felix’s death). Henry adopts Charles. George dies.

Can Charles inherit from George under FL law? Compare Fla. Stat. 732.108(1)(b) with UPC S 2-114(b)(ii) Under UPC jurisdiction there is no marriage exception. It does not

matter when the other parent marries the adopting spouse before or after the natural parent’s death as long as the adoption is after the natural parent’s death.

This time Millie remarries before Felix’s death. Charles cannot inherit because the general rule applies and there is

no exception to cover him. o Problem 8(f) & (b) p. 53 Variation – Felix and Mille have child, Charles. Felix

dies. Mille remarries (Felix’s death precedes remarriage). Henry adopts Charles. George dies. Millie dies.

Can Charles inherit from Millie under FL law? Yes 732.108( a) Doesn’t block from the natural parent who is married to the other

spouse. o Problem 8(f) & (b) p. 53 Variation – Felix and Mille have child, Charles. Felix

dies. Mille remarries (Felix’s death precedes remarriage). Henry adopts Charles. George dies. Millie dies. Henry dies.

Can Charles inherit from Henry under FL law? Yes 732.108 He is now a part of the adopting family and can inherit from the

adopting parent. Stepchildren and foster children?

o Stepchildren – not entitled to inherit from stepparent’s intestate estate (unless adopted)

o Foster children – generally can’t inherit (There is a statute in California that allows foster children to inherit, but there are many steps and this is the only state that does this.)

Check if equitable adoption/equitable adoption (Williams v. Estate of Pender p. 48; elements listed p. 50) THESE FACTORS MUST BE MET:

1. Agreement to adopt2. Performance by birth parents of giving up custody3. Performance by child of living in house “alleged adoptive” parents4. Partial performance by alleged adoptive parents in taking child into

home and treating child as their own5. Intestacy of alleged adoptive parents

What standard of proof required? Clear and convincing evidence – Very hard case to win.

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732.108(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father's family, if:

732.108(2)(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.

732.108(2)(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

732.108(2)(c) The paternity of the father is acknowledged in writing by the father.

Non-marital children?o UPC non marital child inherits from both biological parents UPC 2-114(a) – Does

not care if the parents were married. o FL 732.108(2)

Descendant of mother (and mother’s family) Descendant of father (and father’s family) if:

(a) marriage ceremony even if void(b) Paternity established in court (even after death of father)(c) Paternity acknowledged in writing by father

Afterborn Childreno 732.106 – Heirs of decedent conceived before his or her death, but born

thereafter, inherit intestate property as if they had been born in the decdent’s lifetime.

After-born children Problem 9 p. 53Gerald – Dad of Frank Died after Frank

Frank – DEAD Mary (732.102(2) would control Frank’s estate)January 1 Conceive

Cathy & Sammy (Twins conceived before but born after Death 732.106 would control the decendents of the decedents)

Compare Fla. Stat. 732.106 with UPC 2-108 Cathy can inherit from Frank or Gerald.

UPC requires child to live at least 120 hours (5 days) after birth

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Half-bloodso Generally state statutes recognize relatives of the half-blood the same as relatives

of the whole blood. o Florida?

732.105 – Treats half blood relatives differently. Each half blood heir receives only half as much as a whole blood heir. If they are all half-blood they each get the whole.

o Collateral relative? Relative of the decedent descended from an ancestor (parent, grandparent,

or great grandparent) of the decedent. UPC – Half & Whole are treated the same - whether they are half-blood or

whole-blood.o Dadn died intestate with a private estate worth $240K. He was survived only

by his three siblings, Adam, Betty, and Carol. Explan how Dan’s estate will be distributed if:

o Problem 10(a) p. 53 Dan died intestate survived by brother Adam and sisters Betty and Carol (all whole bloods) (732.103(3)) - $80k each

o Problem 10(b) p. 53 Dan died intestate survived by half brother Adam and half sisters Betty and Carol. Same dad, different mother. Dan Adam Betty Carol732.103(3) and * 732.105 -“;but if all are of the half blood they shall have whole parts”$240,000/3 = $80,000 each

o Problem 10 (c) p. 53 Dan died intestate survived by whole brother Adam and Betty and half sister Carol (Distribute Dan’s $240,000 intestate in FL -- UPC distributes evenly)(e.g., Dan and Adam and Bettry shared both parents but Carol is children of Dan’s dad and new wife)Dan Adam Betty Carol732.105 Trick: Add whole bloods as if they were 2 people. So 2 Shares for Adam, 2 Shares for Betty, and 1 Share for Carol so divide by 5 then multiply by the amount of shares they are entitled to.Adam = $96,000; Betty = $96,000; and Carol = $48,000.

o Problem 10(d) p. 53 Dan died intestate survived by two half sisters Betty and Carol and a whole brother AdamDan Adam Betty Carol732.105 – Adam gets 2 shares, and Carol and Betty each get 1 so divide by 4 then multiply by the amount of shares they are entitled to.$240,000/4 = $60,000 for ½ bloods and double that ($120,000) for whole blood)

o Twen Quiz Ingrid died intestate survived by her whole brother Ben and her half-sister.

Who can serve as a personal representative?o Need a PR for either an intestate or testate estate – someone must divey up estate.o Introductory pages (707-08) of Chapter 33 including Fla. Stat. 733.301-733.305

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o Fiduciary responsibilities covered in trusts class although fiduciary duties also apply to personal representatives.

o Two issues as to who serves as PR: Who is Qualified to Serve & Who has Priority Qualification

Fla. Stat. 733.302 – Resident of FL at time of death of decedent and not disqualified.

Fla. Stat. 733.303(1) Disqualifies anyone who:o (a) has been convicted of a felonyo (b) is mentally or physically unable to perform duties of a

PRo (c) is under 18 (Must be 18 at the time of death of the

decedent.) Fla. Stat. 733.304 disqualifies nonresidents of FL except for the

following closely related relatives of the decedent:o (1) legally adopted child or adopted parent (parent who

adopted the decedent). Child or parent of adoption.o (2) lineal consanguinity (blood relative)

(up and down – parents and higher and children and lower)

o (3) spouse OR brother, sister, uncle, aunt, nephew, niece, or someone related by lineal consanguinity to such person

o (4) spouse of any person qualified by this section. Corporations can’t serve unless they meet Fla. Stat. 733.305

requirements (basically trust companies or banks qualified to exercise fiduciary powers)

Priorities In Appointment – Many people can qualify, who gets appointed?

Testate - Will o Fla. Stat. 733.301(1)(a) and 733.303(2)o Testate estates (with a will)

PR named in will (assuming NOT disqualified) For some reason the PR is not named in the will or person named

refuses to serve or person named is disqualified. Person selected by “majority in interest” in the estate.

o Not a majority of the beneficiaries – it’s the one who gets the most

o Majority “in interest” means the beneficiary or group of beneficiaries that will receive the majority of the estate.

o Will provides: $100,000 to my brother $100,000 to my sister $100,000 to my friend Fred $500,000 to my spouse Spouse is PR b/c spouse has majority “in interest”

Intestate

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o Fla. Stat. 733.301(1)(b)o Intestate estates- DIED W/O A WILL SO PRIORITY =

Spouse Person selected by majority in interest of the heirs Heir nearest in degree

Person selected by majority in interest of the heirs o Not a majority of the intestate heirs.o Majority “in interest” means the beneficiary or group of

beneficiaries that will receive the majority of the estate.o Harry is intestate and dies. Originally had 3 children

(A,B,C) A and B are alive. C predeceased and left 5 children. Per sterpes (3 children each receive $200,000) Charles’ goes between the 5 children. 2 living siblings will be able to decide.

TWEN Quiz – Sally (sister lives in NY) Bob (convicted felon lives in FL) Jane (Florida – predeceased spouses’ daughter) Spouse’s nephew did not work.

CHAPTER 3 WILL FORMALITIESNeed two to tango.

A will requires both : 1. Intent - “mental elements” – If the testator did not have the capacity to enter into the

will at the time of execution it is not valid. If the testator intended to do something instead, it is not a valid will. ISSUES –Mental CapacityFraud – signed a doc thinking it to be a real estate K but signed a will instead.DuressUndue InfluenceFRAUD, UNDUE INFLUENCE, DURESS in marriage

2. Formalities - “mechanical elements” – Technical formalities. Florida - 732.502 This is a conjunctive requirement. Mechanical elements are used as evidentiary purposes to serve as a cautionary function such as fraud.ISSUES:Signature of T not at end of willWitness signature issue – not in presence of each other and T, not enough witness

Purposes of Will Formalities “mechanical elements” CEPC – Caution, Evidence, Protect, Channel1. Cautionary Function –

o Ritual (signature, witnesses, etc.) serves to caution the testator as to the import of his actions. Cautions the testator that unless he changes it before his death, or lost capacity before revoking, the will disposes of the assets. If you fail to change it this is how your assets will be disposed of.

2. Evidentiary Function -o Mechanical elements provide concrete evidence of testator’s intent regarding

his property (physical record of testator’s intention).

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3. Protective Function -o Witnesses requirement in particular designed to serve function of protecting

testator from fraud (signature requirement somewhat because at least the testator looked at the document before signing it and did not sign the wrong thing).

4. Channeling Function -o The more uniform the procedural parts of the will are the easier to

administer.

My own personal way to remember: (Not on notes in Powerpoint) - Even if you have intent, you also need the mechanics. You may want the car to work but without the mechanics it will not work because you can’t run your car with intent alone.

You should use the maximum amount of formalities so that you are covered in all states and if your state uses less formalities and the state where the property was is has greater than your state’s mechanics will be insufficient and the will may be sufficiently contested.

Werner v. Estate of McCloskeyPg 57Son named PR by his mother’s willWhat did trial court do?It erred by appointing an alternate PR because of some undisclosed conflict1st DCA reverses because trial court erred since son did not fall within any of the disqualifications under 733.303 and whatever conflict the court found was incorrect.

Restatement (Second) of Property, Donative Transfers § 33.1 (1992)

§ 33.1 Meaning Of a Will

* * * *c. Statutory formalities.

* * * *[I]f the following steps are taken in the execution of a will, the will should have

maximum acceptability in the various States.

1. The testator should examine the will in its entirety and the lawyer should make certain that the testator understands the terms of the will.

2. The testator and three persons who are to be witnesses to the will and who have no interest vested or contingent in the property disposed of by the testator's will or in the testator's estate in the event of an intestacy (Not a FL requirement that they have no interest but its better this way), along with the lawyer supervising the execution of the will, should be in a room from

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which everyone else is excluded. No one should enter or leave this room until the execution of the will is completed.

3. The lawyer supervising the execution of the will should ask the testator the following question: "Do you declare in the presence of [witness 1], [witness 2], and [witness 3] that the document before you is your will, that its terms have been explained to you, and that the document expresses your desires as to the disposition of the property referred to therein on your death?" The testator should answer "yes," and the answer should be audible to the three witnesses.

4. The lawyer supervising the execution of the will should then ask the testator the following question: "Do you request [witness 1], [witness 2], and [witness 3] to witness your signing of your will?" Again, the testator should answer "yes," and the answer should be audible to the three witnesses.

5. The three witnesses should then be so placed that each can see the testator sign, and the testator should then sign in the place provided for the testator's signature at the end of the will. The testator should also sign on the bottom of each page of the will.

6. One of the witnesses should then read aloud the attestation clause, which should provide in substance that the foregoing instrument was signed on such a date by the testator (giving the testator's name); that the testator requested each of the witnesses to witness his signing of the document; that each of the witnesses did witness the signing of the document; that each witness in the presence of the testator and in the presence of the other witnesses does sign as witness, and that each witness does declare the testator to be of sound mind and memory.

7. Each witness should declare that the attestation clause is a correct statement.

8. Each witness should then sign in the place provided for the signatures of the witnesses following the attestation clause. As each witness signs, the testator and the other two witnesses should be so placed that each one can see the witness sign. Each witness should give an address opposite his or her signature.

If under the controlling local law the observance of certain formalities will make the will self-proving, and additional formalities to those listed above are required to make it self-proving, such additional formalities should be adopted.

Preferred Method of Execution – Maximum execution of any state’s formalities. Find in Restatement (Second) of Property §33.1. Print out and make into a checklist. It will tell you the order you will do in maximum formalities.

o Lack of uniformity of choice of law rules 732.502 – Florida does not require publication, but 732.503 requires

publication requirement in order to be self-proved. – You should always add the self-proof if you can, unless circumstances such as death in ICU, etc. – Louisiana does require self-proof.

FL does not allow holographic wills

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You should be familiar with other state’s law because your client could have real property located in another jurisdiction subject to ancillary probate in another jurisdiction. You want the other jurisdiction to give validity to your will. Also, your client could move and become domiciled in another state.

o Comply with maximum formalities Recurring litigation regarding Mechanical elements – Execution

1. Testator’s signature (intent of testator, location on the paper, proxy sign in presence of

testator,)2. Witnesses

(number, disqualification, whether witnesses actually witnessed what is required by statute to be witnessed, and witness signature)

3. Presence Requirements Will Formalities Statute FL

o 732.501 – Who may make a Willo 732.502 – Execution of Wills

Must be in writing – can’t be just on computer, must be printed and hand signed.

All wills executed in Florida must comply with paragraph one. Witnesses, sign at the end, etc. – Florida does not accept unattested wills (no witness signatures). The majority of states do acknowledge a totally handwritten will that is unattested, reasoning is because it is difficult to fake a totally handwritten document and therefore not likely to be fraudulent.

732.501(1)c – Witness must sign the will in the presence of at least two attesting witnesses.

Paragraph 2 applies to wills executed in other states by a non-resident of Florida. Conflict of law statute. Note in Probate Code. If you are a resident of Florida paragraph 2 does not apply. If executed in other states it is valid in Florida with one exception.

Exception: 732.501(2) – Florida does not acknowledge a holographic will even if it was valid in a different state. Holographic will is handwritten by the testator without any witnesses. Most jurisdictions will allow holograph if primarily in the handwriting of the testator. However, if the holographic will is signed properly, by the required witnesses, then not considered holographic, it’s jsut a handwritten will with proper signatures.

Florida does not require a computer, a will may be handwritten as long as it is witnessed complying with requirements of paragraph 1.

o 732.503 –Self-Proof Will Writing Requirement

o 732.502 – Every will must be in writing. DVD’s don’t count. Must be printed from the computer and signed.

o All states (even UPC) require writing Testator’s Signature Requirement

o FL - 732.502(1)(a)

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o 732.502(1)(a)(1) – Requires that testator’s signature appear at the end of the document. Unless name was intended as signature, printed name is not a signature. In other jurisdictions if you can prove that you intended your printed name at the beginning of the will to be your signature, it could count after litigation.

o Issues: (1) Did testator sign the will, and (2) Did testator sign in the right place?

Can testator sign by mark?o Page 59o Barron v. Williams (In re Estate of Williams), 182 So. 2d 10 (Fla. 1965)o Accepted prior that a witness could sign by a mark but had not decided about a

testator.o Holding: A testator may sign his will by marking a mark if there is

o INTENT: It is a matter of fact to be proved in the proper proceedings whether the testator made the mark with the intention that it be his signature.

o Reasoning: If we allow signature by proxy, a mark should be allowed by the testator.

Where on the will must testator sign?o 732.502(1)(a)o FL is one of very few states that mandates that the signature be “at the end.”o Page 61 – In re Schiele’s Estate, 51 So. 2d 287 (Fla. 1951)o Testator signed in attestation clause, but not in the will.o Holding: Counts because it was at the end of the dispositive provision.

What if Testator forgets to sign the will?o Page 66o Dalk v. Allen 774 So. 2d 787 (Fla. 5th DCA2000)o See p. 67 two places for testatrix’s signature left blanko Ceremony had her signing 8 documents. She signed the copies but not the

original. o Holding: Will failed.

What must witnesses actually witness?o Three possibilities

1. Witnesses must witness the testator actually sign his name (Strictest)2. Witnesses must witness either (1) the testator signing or (2) the testator’s

acknowledgement of his signature on the document (FL falls here)3. UPC State: Witnesses must witness either (1) testator’s signature, (2) his

acknowledgement of his signature, or (3) the testator’s acknowledgement of the document as his will.

o What does FL require?o 732.502(1)(b) – Witness must witness either testator’s 1. Signing or 2.

Acknowledgement that he had previously signed or that his name had been signed by proxy.

Other Witness requirement?

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o Fla. Stat. 732.502(1)(c) – Attesting witness must sign the will. In re Estate of Charry p.69

o Mr. Charry wrote a codicilo Codicil did not have an attestation clauseo Codicil did have a self-proof affidavito Where did the two witnesses sign?o See 2nd from last sentence middle of page

Better view is that attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it

Who can be a witness? P. 56o FLo 732.504 o (1) Competent to be a witness

(90.601; 90.603 (FL rules of Evidence– Disqualified if can’t understand) o (2) interested witnesses (beneficiaries under the will) don’t invalidateo Most states – unlike FL – disallow interested witnesseso Footnote 3 - Statutes that disallow interested witnesses may have a “purging

statute” (nevertheless the will would still be valid even if there was an interested witness)

Spectrum of interested witnesses effectDisallows Disallows Disallows AllowsInterested Interested Interested InterestedWitnesses Witnesses Witnesses WitnessesNo purging Strict purging Liberal purgingStatute – Statute – Statute –WILL WILL WILL VALIDINVALID VALID BUT Beneficiary/

Beneficiary/ Interested witnessInterested witness Forfeits amount ofForfeits entire devise in this willDevise that exceeds intestacy

Or Previous will) FL Presence Requirements

1. Testator’s signature or acknowledgement must be in the presence of at least 2 witnesses – 732.502(1)(b)

2. Attesting witnesses must sign in the presence of the testator – 732.502(1)(c)3. Attesting witnesses must sign in the presence of each other – 732.502(1)(c)4. If testator’s name is signed by proxy, the proxy signature must be in the testator’s

presence and direction – 732.502(1)(a)(2)5. If testator validly executed his will in another jurisdiction and pursuant to that

jurisdiction’s presence requirements then FL will acknowledge the will as being valid even though the FL presence requirements were not met. 732.502.

6. UPC only requires presence for proxy. Line of Vision – Florida, strictest of the two tests

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o Each party must be capable of seeing the other in the act of signingo e.g., testator is capable of seeing the witnesses in the act of signing

Conscious presence testo Person through general consciousness of events, comprehends that the other is in

the act of signing. (rustling papers, saying “I’m signing the will now.) Consciousness of the fact of signing is an indispensable requirement. Not enough to know that others are in the room – must know they are in

the act of signing Simpson v. Williamson p. 70 (Fla. 5th DCA 1992)

o Williamson’s will increased devises to two former wiveso Will signed at end by Williamson (testator) and witnessed by Niven and Bass (on

page 5 of will) Bass stated that they were not all together for signing the will in an affidavit. Bass said the testator was not present.

o Self-proof (on page 6) signed by Williamson (testator) and by Niven, and Bass, and then Welden notarized and signed as the notary (self-proof would NOT be present if notary served as witnesses but okay because self-proof NOT a requirement)

o Notary could be deemed the second witness if it is notarized at the same time. It didn’t work here because there were issues with the attorney saying that Weldon would get it notarized in his office.

Integration p. 58o Pages must be present when will executed and be intended to be a part of the willo Don’t have to separately attest each page, but pages must be “integrated” in some

way By sense

e.g., bottom of first page says “to my” and top of next page says “niece.”

By physical attachment Fastened securely

Holographic Wills p. 55 n.2 – Unattested handwritten will. o An unattested (no witnesses) will may be valid in a jurisdiction that recognizes

holographso Majority of states recognize them 27 Stateso FL - No -- 732.502(2)o Will written entirely (or materially in the testator’s handwriting)

Must be signed by the testatoro Spectrum of holograph

No Non-UPC 1990 UPCHolographs States that Signed andFL allow material

Holographs portions mustSigned, be in Testator’sDated, and handwritingTotally inTestator’s

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HandwritingWhat if the testator wrote the document on his letterhead or his stationary with his name on it...would any typewritten words take it out of the totally in testator’s handwriting? Would have to be able to show that the testator had no intent that the typewritten words be part of the handwritten document, the letterhead would NOT constitute a signature.

Questions p. 72-73o 7. (TWEN) Dan eating at restauranto Allergic reactiono I leave all my property to First Baptist

Xo Dan asks 2 waitresses to send his will to the church. Dan died. Under FL law,

did Dan die with a valid will? (a) No, because FL requires testators to publish their wills and Dan did not

declare the document to be his will (b) No, because FL does not allow a testator to sign by mark (c) No, because FL does not allow holographic wills (d) Yes, because FL allows holographic will when the testator is in

imminent fear of deatho Question 7 cont. and q. 8

7. Dan eating at restaurant Allergic reaction I leave all my property to First Baptist Church

X Dan asks 2 waitresses to send his will to the beneficiary What if the two waitresses had see Dan sign by mark? Valid will? No. Witnesses also need to sign

o How about Q.8o TWEN Question 2

Tina Testator, a widow was single and childless. She wrote a will leaving her probate assets one-half to her long time friend and neighbor, Sam, and one-half… Is the will automatically invalid in Florida because both witnesses were beneficiaries? No. FL does not automatically invalidate a will signed by disinterested witnesses, although this is not recommended for purposes of it being challenged by others. 732.504

o Question 9 p. 73 (and TWEN q. 3) Terry’s kitchen table 2 neighbors Terry signs Door bell rings Neighbors sign while she goes to answer the door. This is not going to work in Florida. What if she can hear them signing?

Not good enough – need line of vision presence – unless legislature changes this to conscious presence (in FL - this is allowed if the testator is blind).

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Wills: Testamentary Intent, Testamentary Capacity, and Undue Influence If jest, a contrivance, or another purpose, not testamentary intent

o e.g., Professor using will for pedagogical (just showing an example) purposeso If testator is told he is signing a deed or a K then he doesn’t have the intent to sign

a WILL.

Mental Elements – who has burden?o 732.501 – sound mind

Who has the initial burden to establish the formalities of a will in FL?o 733.107(1) -

Proponent has burden to establish prima facie its formal execution and attestation

Proponent is one who wants the will to be valid 733.107 provides that - A self-proving affidavit executed in

accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will.

Who has the burden to prove lack of testamentary capacity or other grounds for contestso 733.107(1)

The contestant has the burden to prove why it shouldn’t be probated (e.g., lack of capacity)

Statutory Presumptiono FL 733.107(1)

Proponent has burden to establish formalities (e.g., signature at the end, attested, presence)

Contestant then has burden on grounds for opposing (e.g., lack of capacity)

When things are deemed to be policy considerations – that it shifts the burden to the other side

o 90.302 Says only important policy considerations will shift the burden of proof Lack of capacity shifts the burden of proof

Testamentary Capacityo Testator’s ability to understand in a general way:

(1) The nature and extent of his property (type of property owned) (2) Natural objects of his bounty (would naturally take from you (testator

does not have to know what a person would take in a per sterpies jurisdiction tho – also doesn’t have to leave them anything though)

(3) Practical effect of will as executed (i.e., the disposition he wishes to make of his estate, and the act of making a will)

Also needs to know that he is executing a will

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You will see people contest based on testamentory capacity when:The testator was ill/weak during the time the will was signedWhen the testator leaves his estate to people that seem unusual or unnatural.

Excerpt from The Testament pgs. 81o P. 81 he pulls out and signs a different willo Would the new will be valid in Florida?

No – holographo Does he have testamentary capacity?

Testamentary Capacity – know natural objectso Knowledge of natural objects of his or her bountyo Don’t have to leave them anything or treat them equallyo Sometimes helps to include a –o Recitation Clause (explaining the uneven contributions)

Ex: why you are not leaving one of your children something Don’t need but helps to explain and get true intent

American Red Cross v. Estate of Haynsworth p.86o 3 wills executed in 1993: He was 94 when he executes these willso Feb. Will May July Will Nov. Will

Most of the estate T declared Charitable devises was totally to 3 charities & incompetent reduced; gifts to deemed large devise (5% in proceeding niece and other invalid of estate) to Blum initiated by family increased(the lawyer who attorney; Niecedrafted the will) is guardian

The attorney Blum in 1993 petitioned to determine Haynsworth’s competence.T died Dec. 1995 at 97What is the effect of an adjudication of incompetency? P.89

- Shifts burden of going forward with evidence (of a return to Capacity) to proponent of will (here the niece). Normally, without the adjudication of incompetency of the testator, you would not have to introduce a thing to prove capacity, you would just have to prove formalitites.

-this does not apply to the Feb will bc competency was done afterWhat argument can you make on the earlier will

-if its close in time can argue that he wasn’t doing so well at that time either – you will have the burden bc there is no presumption; difference is they are not going to get the burden shifted

Lucid Interval

o Florida : It is not enough to say that at the moment they executed the will they aware not patently delusional. Must prove, that a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity

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Even if it is only for a short time

Insane Delusion – (Edwards v. Citizens National Back of Lesburg.o Legal not psychiatric concepto False belief testator adhered to against all evidence or reasono Subject matter of the insane delusion must have no foundation in facto Only the part of the will that was caused by the insane delusion fails (unless the

delusion affects the entire will) Here, striking the part about the lawyer but keeping the rest valid

Edwards v. Citizens National Bank of Leesburg (In re Estate of Edwards) p. 89o Contestants conceded to him knowing his property and the natural bounty they the

main issue was whether he knew the practical effect of will as executed.o The contestant’s expert witness actually said he did know and therefore he met

the 3 PART TEST.o They then claimed that even though he knew all of the above, he was having an

INSANE DELUSION.o Trial court had found capacityo Believed that family members were taking his property worried about shoplifting

etc.o decedent changed his will 6 days before he died and left it all to his employeeo Disinherited family memberso RULE: an insane delusion analysis can be wrong; but it just cannot be based on

any fact at all o did not matter that his family was not doing what he thought – just that he had

those feelings towards him Insane Delusion:

- Has to be a delusion with no factual basis. - Believed that family members were taking his property without permission. - See some factual basis-not insane delusion. Insane delusion is when have no factual

basis for your actions. - What is determinative is that those feelings arose from reasoning or a known premise

Here they did not exists only in the decedents mind

Pangborn v. Union Trust National Bank (In re Estate of Burkhart) p. 92Oct. 7, 1959 Feb. 1960 July 1962 Dec. 1963Will executed T had been Rest home Died at 81(wife had died DeclaredAug. 1959) and incompetentFalsely says heis a resident

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of OhioCritical time of capacity is AT THE TIME THE WILL IS EXECUTED. Since at his wife’s funeral he was lucid and that is during the same time he executed the will, the proof that he was not incompetent at the time.The mental elements will be on the contestant in a case where the will is executed and then the testator is SUBSEQUENTLY deemed incompetent.

Hansworth – Incompetent PRIOR to execution of proposed will – the burdened shifts to proponent of will.Pangborn – Incompetent SUBSEQUENT to the execution of the will. – the burden remains with the contestants.

09/22/2009

Undue Influence

Undue Influence P. 96o Influence destroyed testator’s free agency and substituted another’s volition for

that of the testator It was not that person’s desires that is shown on doc

FL prove directly: 1. Influence exerted on testator (UNDUE INFLUENCE – love can be an

influence but it is not considered undue influence. 2. Effect of the influence was to overpower the testator’s free agency

Its okay to influence someone – just cannot overcome them 3. The product was a will (or portion thereof) that would not have been

executed but-for the influence If you are a contestant of a will you may need to prove undue

influence directly

Tarsagian v. Watt – Kids of previous marriage are challenging new wife who got everything in the willThey want to annul the marriage and revoke the will for undue influenceThe court does not annul the marriage and yet still finds undue influence by the wifeHowever on appeal, the court agrees that the marriage was not the result of fraud, duress, or... but they overturn the trial court’s ruling that the will be revoked for undue influence.

- Will not valid if undue influence - 732.805 – unless the marriage is the product of fraud, duress, etc then the

presumption of undue influence cannot be raised because the factor “confidential relationship” element will always be met.

Presumption of Undue Influenceo Recall: FL 733.107 contestant has burden of proof on mental elements

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o Contestant can raise a presumption of undue influence by demonstrating that the influencer: (need to prove these 3 things)

1. Influencer is a Substantial Beneficiary (SB) 2. Was in a Confidential Relationship with testator and

Will not find btw husband and wife (CR) 3. Actively Procured the will (AP)

If contestant shows all three things above, the burden of proof (not just burden of procuring evidence) shifts to the proponent.Therefore, proponent must prove, by a preponderance of the evidence (51%) that the will was valid and not the product of undue influence.

Estate of Carpenter p. 92- CBC has 4 children – Mary, Ben, Sam, & Bill- Mother left entire estate to Mary

o Mother is on heavy medication and has been drinking - before was going to distribute equally, but now says sons do not love her

- Contestants – Ben & Bill

Substantial Beneficiaryo Someone who received a “substantial” and “unnatural” deviseo Unnatural devise :

Significantly more than the person would have received Under intestacy In comparison to others in the same degree of relationship to the

testator Or more than was provided for the beneficiary in previous wills

o Third-party undue influence A person who procures a will to favor the interest of a third party (spouse

or child) may himself be guilty of undue influence even if not technically a “substantial beneficiary”

Ex: if you want to get money but would look suspicious so you have it go to your child or husband – can still find undue influence

This is tougher to prove however the argument is a valid argument. Allen v. In re Estate of Dutton – attorney is generally prohibited

from drafting a will for his personal benefit because of the conflict of interest. Also Gift to lawyer or lawyer’s family.

In re Estate of Dutton - Merely naming himself as executor or trustee, and suggesting the hiring of his law firm would not be sufficient to make him a sub beneficiary. However, his absolute discretion to distribute the bulk of the testatrix estate to charities endows him with sufficient collateral benefits to make him a substantial beneficiary of the will. (page 117)

Confidential Relationship

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- Encompasses a Standard Fiduciary Relationshipo Priest/penitento Attorney/cliento Doctor/Patient (particularly someone dependent on dr. – nursing home)o Guardian/wardo Trustee/beneficiaryo Accountant or Financial advisor?/client

Courts are not as clear – but might be able to find Not strictly fiduciary – in a broad sense is confidential

What other relationship could be deemed a confidential relationship Carpenter definition

Embraces “both technical fiduciary relationships and informal relations which exist whenever one person trusts and relies upon another” pg 100

Family relationships are included in this broad definition but for family need more than just close relationship

o ex: taking mother to live with you – Carpenter case. CANNOT BE BTW A HUSBAND AND WIFE

o Would have to prove undue influence directly

Factors for Active Procurement1. Beneficiary present at execution2. Beneficiary present when will discussed3. Beneficiary recommending attorney4. Beneficiary’s knowledge of contents of will5. Beneficiary giving attorney instructions6. Beneficiary securing witnesses7. Beneficiary storing the will

- Carpenter factors present: 1, 3, 4, & 5 (Not good)o Court said do not need all factors – and are not exclusive would consider other

similar factors MENTAL ELEMENTS – BURDENS – MENTAL CAP/UNDUE INFLUENCE

90.302 – rebuttable presumption either (1) shifts burden of producing evidence or (2) shifts burden of proof

90.303 – a presumption that is not one needed to implement public policy shifts only of producing evidence (e.g. finding of incompetence – if already declared by the court to be incompetent. This is not public policy issue.)

90.304 – a presumption (that implements public policy) shifts burden of proof.

733.107(2) – preventing undue influence is a public policy issue – shifts burden of proof

What is the effect of raising the Presumption of undue influence?

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- FL 733.107 - Proponent (Mary) has burden to establish duly executed and attested- Contestants (Ben and Bill) then have burden on grounds for opposing (e.g., undue

influence – thus if Ben and Bill show SB, CR, and AP then burden of proof shifts back to Mary, the proponent, to prove by a preponderance of the evidence (51% or more) that the will was not a product of undue influence.)

Does raising the Presumption shift the burden of proof back to the proponent = YES- If contestant shows:

o (1) substantial beneficiary,o (2) confidential relationship, ando (3) active procurement

Burden of proof shifts to Proponent Requires the proponent to prove by at least Preponderance of evidence (51%) that will was valid (i.e., that testator

was not under undue influence) Has to explain why

Now if all evidence is equal contestant wins Absent a presumption the burden on mental elements is on contestant

– if evidence is equal proponent winso Ethics – Note 8 p. 112

Fla. Bar rule 4-1.8 Attorney prohibited from drafting will naming himself as a

beneficiary (unless attorney is related to testator) What if attorney gets to choose charity? Presumption of undue influence? Attorney is clearly in confidential relationship Clearly active procurement

9/24/09

Hack v. Janes p. 101 Beneficiaries under 1990 will challenge probate of later (1992) will

claiming beneficiary of 1992 will (Lorraine Janes) used undue influence on testator Dorothy Helling

The court found no undue influence On appeal presumption found so new trial Court again said no undue influence encen taking into account 733.107(2)

presumption of undue influence – public policy – shirts burden of proof. 733.107(2) presumption of undue influence – public policy – shifts burden

of proof Still, preponderance of evidence standard

See Diaz case 112

Chapter 5 – Fraud, Duress, Mistake, Spoliation, & Tortious Interference

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Additional Precautions against contesto Supernumerary Witnesseso Physicianso Recordingo Recitation clause

Explain why you are not leaving everything to the kids Explain why it is not distributed evenly

o Successive wills with same testamentary plan If one is deemed product of undue influence or executed while T lacked

capacity, earlier will could stando Intervivos gifts

This is much harder challenge bc testator is alive o Non-probate assets – Life Insurance Contract, Joint Tenancy, Tenancy By the

Entirety (Right of Survivorship), Retirement plans, intervivos trusts Harder challenges

No Contest Clause (aka In Terrorem Clauses) – provision that reduces beneficiary’s devise if he contests will p. 122

- Not allowed in Florida o HYPO: 2 Choices

Take devise in Will OR Contest Will trying to get more under Intestacy or previous will

o If contest Will and fail, the terms of the no contest clause takes overo FL?

732.517: Penalty clause unenforceable in FL

Ex: Will says $100,000 to son Joe but if he contests Will Joe gets $5,000, Intestacy would have gotten $600,000

- Depends on how good your case is: what it does is prevents frivolous contests Note: If devise not high enough, won’t work, for this to work the amount

has to be big enough for him not to contest

Fla. Stat. § 732.5165* Effect of fraud, duress, mistake, and undue influence A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

*Amended 2011

732.5165 Effect of Fraud, Duress, Mistake, and Undue Influence- Will is void if execution procured by fraud, duress, mistake or undue influence

- Not just if induced by fraud, mistake . . .

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- If part of Will is procured that way, that portion of the Will is void

What if there is fraud in the inducement but not fraud in the execution?- The will is not voided BUT if a challenge is raised about fraud in the inducement.

Typically a remedy can be found in a constructive trust.

Types of fraud that occur in testamentary setting p. 113o Fraud in the Execution

Person INTENTIONALLY misrepresents contents of document or switches documents before execution. FRAUD requires intent to deceit.

o Fraud in the Inducement Testator INTENTIONALLY misled into forming a testamentary intent

that he would not otherwise have formedEx: Testator is lied to by the frauder, that testator’s son is dead.

Intent to deceive distinguishes fraud from mistake.

o See note 1 p. 121o Forsythe v. Spielberger mistake in inducement not enough under 732.5165.

Is fraud similarly limited (i.e., only fraud in the execution not fraud in the inducement would void will)?

What is fraud in the execution? Moneyham v. Hamiliton 168 So. 522 (Fla. 1936) ch. 5 p. 114

o Bedridden Testator asked daughter to get will so he could revoke ito Daughter pretended she couldn’t find willo When T died Daughter introduced will for probateo Ct. said no “constructive trust” because only frustrated “intent” to revoke not

“act” of revocation

Types of Mistake p. 116

- Mistake in the Execution – mistaken as to what he is actually executingo Testator thinks he is executing another document (e.g., a power of attorney) but

he executes his willo THIS IS COVERED BY 732.5165

- Mistake in the Inducement – mistaken as to the facts and that mistaken fact caused the creation of the will

o Testator mistaken in facts leading to testamentary disposition he would not otherwise have used (e.g., thought son had died but didn’t)

o THIS IS COVERED BY 732.615

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- Scriveners MistakesMistake in express – document says something the testator doesn’t want.Without ambiguity (patent & latent) – look to testator’s intent.

o For here dealing with no ambiguity as to what the personal rep has to do (patent or latent) – just mistake/error

Deal with ambiguity later on o (ch. 8 – ambiguities – testator’s intent)

Ex: I leave my car to my cousin Teresa, turns out there are 2 cousin Teresas

o THIS IS COVERED BY 732.615

Fla. Stat. § 732.615* Reformation to correct mistakes – WILLS (Most states still don’t allow this – because the testator is not around to find out what he really wanted.)Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator's original intent, the court may consider evidence relevant to the testator's intent even though the evidence contradicts an apparent plain meaning of the will.

*Effective July 1, 2011

In Will - Will can be reformed 732.615 for mistake in the inducement and mistake in expression

(scriveinor’s error)- Need clear and convincing evidence- Mistake in the execution (e.g. testator executed the will by mistake thinking he was

executing another type of document covered by 7325615 and can void the will.- What if mistake caused Testator to NOT execute a will? Can 732.5165 help? NO

MISTAKE CAN VOID A WILL BUT IT WILL NOT CREATE ONE FOR YOU.

Fla. Stat. § 736.0415 Reformation to correct mistakes – TRUSTSUpon application of a settlor (the person who creates the trust) or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's

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original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

Forsythe v. Spielberger p. 117- 6/10/54 Jacob Spielberger (Settlor) executes trust for himself, wife, then equally among

his 4 grandchildren- 8/1/54 Jacob carried to hospital by daughter, Amelia, and he hands her a ring for

safekeeping- 8/14/54 Amelia gives ring to her brother Henry- 8/19/54 Settlor amends trust – Henry to get ¾ and Lewis ¼ (because Jacob thought

Amelia had switched the diamond for a fake)o Jacob also executes a will leaving the rest of his property to the trusto Mistake in inducement (mistake in the facts) – is not sufficient o Ct. said not enough to invalidate the will or trust

In re Estate of Mullin p. 119- Testatrix’ 1952 Will

o ¶3 – real estate to her sister Maryo ¶4 – residue in trust $150/month to sister Mary till her death then principal to 5

individuals named therein Nov. 1, 1957 testatrix calls attorney to hospital tells him sister is dead

and to write a codicil eliminating parts of trust for her sister Codicil revokes ¶s 3 & 4 Testatrix dies Nov. 12, 1957

o Attorney made error in making will as decedent wanted o Is mistake by scrivener sufficient to void will?

NO, Court noted Forsythe v. Spielberger doesn’t void for mistake in inducement (facts) (only mistake in the execution is enough)

Ct. reasons similarly that mistake by scrivener doesn’t void

– Fla. Stat. 736.0415 Reformation to correct mistakes- TRUSTS - Upon application of a settler or any interested person the court may reform the terms of

a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement

NEW LAW AS OF 7/1/11 - Reformation to correct mistakes- - Fla Stat. 732.615 allows a court to reform a will to correct mistakes even without an

ambiguity, as long as there is clear and convincing evidence of the testator’s intent.

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Mistake- In a trust

o Document can be reformed 736.0415 whether mistake is in expression (scrivener’s error) or in inducement (need clear and convincing evidence)

- In Willo Mistake in the inducement not sufficient to void a will under Fla. Stat. 732.5165

Forsythe v. Spielbergero Mistake by scrivener without ambiguity not sufficiento Mistake in the execution (i.e. when testator executed the will by mistake

thinking he was executing another type of document covered by 732.5165 and can void the will

Fla. Stat. 732.5615 Beyond Reformation – WILLS – New law as of 7/1/11- 732.5615, voids a will, or a provision of a will, that was PROCURED by mistake.

- What if mistake caused Testator to not execute a will? Can 732.5165 help? NO, most it can do is VOID a will or part of it – THIS MAY BE NO

GOOD LAW CHECK POWER POINT>>>>>>>- Assuming that the decedent’s entire will is invalidated, and no prior will is operative, the

decedent will die intestate.- If only a portion of the will voided, the affected property may go to other devisees or may

pass by intestate succession.- That outcome depends on the type of devise (specific, demonstrative, general, or

residuary) and whether there are alternative takers provided in the will.- If a later will is void, any language revoking a prior will is ineffective.- By striking part or all of a will, the probate court eliminates the devise that was

wrongfully obtained.- The court’s action does not reinstate a devise that allegedly would have been included but

for the wrongdoing.- In such cases, since the remedy in the probate proceeding is inadequate, relief should be

granted either in the form of a constructive trust, by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of fraud, or by giving the aggrieved party an action at law for damages against the defrauder.

Constructive Trusts for mistake- Generally need a breach of a promise between the transferor and the transferee leading

to unjust enrichment and either:(1) confidential relationship;(2) fraud;(3) undue influence; OR(4) contemplation of death

o FL Sp. Ct. refused to apply constructive trust to fix mistake to execute (failure to sign)

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o Allen v. Dalk execution ceremony failed because testator didn’t sign will when signing many documents – NO constructive trusts

Lowy v. Roberts Pg. 122 - Spoliation

Spoliation: post execution change in the will by an unauthorized third party.A challenge based on spoliation REQUIRES ESTABLISHING:

1. Than an unauthorized change occurred2. If that challenge is successful, the focus shifts to establishing the terms of the original

will.3. If the original will’s terms can be established, the will, as originally written, may be

admitted to probate.

An atty should take measure to prevent spoliation, including counseling the testator regarding safekeeping of the will,If more than one page, the atto should take steps to prevent pages from being replaced by substitutes inserted at a later date.

Lowy v. Roberts pg 122- Post-execution 3rd party alteration a will

o The testator had signed every page (but the 1st 4 were changed bc did not have his signature)

- Robert Lowy had a six page will- The 1st 4 pgs were switchd out- Wife supplied a copy of the will with original six pages which showed all 6 were signed

by testator.- The one that wife claimd was real left all property & furniture to wife- The one with the change only left the real prop & furniture contained in a specific

address to wife- The will left residuary estate to wife (Onelia) and a niece (Carol Roberts)- ¶ 5 changed (fn 3 p. 123)- The court found that the copy was sufficient to allege a claim for spoliation which

should be tried by a jury to determine which one is in fact the correct will

Kramer v. Freedman, p. 132- Evelyn Patricia Freedman wants constructive trust imposed on part of her father’s

estate- P. 135 (1st ¶) Evelyn failed contesting probate of will. She didn’t meet her burden to

show duress or undue influence in Will execution- Father’s Will was probated

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- Estate went to estranged wife, Valerie, and Evelyn’s half-sisters (Valerie’s two daughters) Roberta & Judith

- Before father’s death Roberta & Judith promised him in writing to split the estate equally with Evelyn – so he did not write a will leaving the other daughter out

- Here, were unjustly enriched by the amount of not sharing – court found that there was a confidential relationship and there was breach of promise

- So, was constructive trust imposed on the part of the part that should have gone to daughter

Constructive trust: when someone holds as trustees for someone else- Here the sisters were acting as trustees for half-sister

9/29/09

Constructive Trust- Not a real trust – is a remedy for a wrong

o To prevent unjust enrichment - Equitable remedy- Court construes the circumstances such that the person who was unjustly enriched is

seemed to hold the assets as a trustee in trust for the intended transferee- Need to meet the elements for constructive trust

Constructive Trusts for fraud- Generally need a breach of a promise between the transferor and the transferee leading

to unjust enrichment and either:(1) confidential relationship;

- btw transferor and transferee (2) fraud;(3) undue influence; OR(4) contemplation of death

- with transferor - Can be imposed for fraud (in execution or in inducement)

Probably can’t void will under 732.5165 for fraud in the inducement (analogy to Forsythe v. Spielberger – see note 1 page 121 but might be able to

Claveloux v. Bacotti, p. 135 – Tortious Interference - Christine Claveloux (the only daughter of Anna McGloin) sued her cousin Bacotti for

tortious interference – mother is still alive o Bacotti had aunt redo her will and gave him half and other half to American heart

association o McGloin own lawyer would not change – so B got a new one

- Tortious interference with expectancy cases brought after death o Allowed one case to go forward when the actual interferer had died before

testator

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Tortious interference elements P. 129 – Schilling v. Herrera citing Claveloux v. Bacotti1. Existence of an expectancy; (prior will, discussion by testator re intent, etc)2. Intentional interference with that expectancy through tortious conduct;3. Causation (proximate cause for P to get less or no share)4. Damages; AND

See Note 1 p. 137 – 5th element5. Lack of an adequate remedy at probate

You cannot bring a tortious interference case if there is a remedy at probate If adequate relief is available in a probate proceeding then tat remedy must be exhausted before a tortious interference claim may be pursued DeWitt Case.EXCEPTION: If the def’s fraud is not discovered until after probate, P is allowed to bring a later action for damages ince relief in probate was impossible.

- But must first show that there was no remedy in probate

No state other than Maine has allowed this COA to be pursued prior to the testator’s death.

PURPOSE OF THIS TORT To protect the testator’s former right to dispose of his property freely and without

improper interference. Whalen v. Prosser see pg 129 NOT to protect the beneficiaries inchoate rights This is because the fraud, duress, undue influence, or other independent tortious conduct

required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced, the testator is.

When might there be lack of adequate remedy at probate?- P. 127 top reference to DeWitt- Distributions of assets sought cannot be provided by probate court

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o e.g., plaintiff son was promised 2/3 prior to interference and would get only ½ by intestacy – so can try to show to get the full amount

o e.g., plaintiff not a family member and no prior will available so intestacy doesn’t help

Neumann v. Wordock p. 125- Siblings sued their sister – tortious interference- Claimed sister caused parents to execute a durable power of attorney giving the sister

control of the parent’s property and Wills in her favor- When parents died there was no assets in their estates (bc sold) - Here no adequate remedy in probate because specific property promised and intestacy

wouldn’t work – there was nothing to distribute

Tartaglia v. Hatten (In re Estate of Hatten) p. 127- Appeal from Summary judgment so accepting plaintiffs facts as true:- Louise Hatten had 7 brothers and sisters- Louise’s Will disinherited 2 brothers and a nephew- After Louise died, one of the disinherited brothers went through Louise’s papers and left

with papers in a bag, cardboard boxes, and mental boxes.- 733.207 prevented adequate remedy in probate

o if a will is missing there is a common law presumption that the testator destroyed it with intent to revoke

it is a rebuttable presumption

Fla. Stat. 733.207: Establishment and probate of lost or destroyed will- Any interested person may establish the full and precise terms of a lost or destroyed will

and offer the will for probate.- The specific content of the will must be proven by the testimony of 2 disinterested

witnesses, or if a correct copy is provided, it shall be proved by one disinterested witness

Rule: hearsay rule does not bar the testimony of the plaintiffs regarding 1) the fact that the decedent had executed a will and 2) the contents of the will

Rule: the dead man’s statute does not apply in an action for tortious interference – only applies when the personal representative is being sued in his or her representative capacity not when being sued personally

Amendment and Revocation – Ch 6

Need intent and formalities to revoke

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1) Mental Elements/Intent: Testator must have present intent to revoke, capacity, and be free of influence at time of revocationAND2) Formalities for revocation

- Amblitory Will – does not transfer until death of the testator- Inter Vivos Trust – does create a property interest

o Revocation (1) Intent (2) Formalities

o See Estate of Mizell and Tonnelier v. Tonnelier

732.505 – Revocation by Writing (if want to revoke part have to do it this way)A will or codicil, or any part of either, is revoked

(1) By a subsequent inconsistent will or codicil but revocation only so far as inconsistency

- Implied- has to be signed by 2 witness and signed at the end – 502, don’t have valid 505

if don’t have 502 stuff - the 2nd will revokes the 1st even if expressly not mentioned

(2) By a subsequent inconsistent will or codicil or other writing declaring the revocation- Expressly revokes the previous - cleanest/best way to do

Express Revocation by Subsequent Instrument 732.505(2)

HYPO: Will #2: This will hereby revokes all previous wills and codicils made by me- If Will #2 valid and has express revocation clause – Will #1 is revoked- If Will #2 NOT valid

o (procured by fraud, undue influence, T lacked capacity, or formalities not met) No revocation and Will #1 stands bc can only revoke by a VALID

instrument

10/01/09

Can Subsequent Instrument do nothing but revoke? – YES, if express - “This instrument hereby revokes all wills and codicils previously made by me.”

o It doesn’t have to dispose of property or anything except revoke, you can only do if it expressly revokes

- /s/ Testator- Witness 1

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- Witness 2- 732.505 – Revocation by Writing – needs to be express

Express Revocation of Part of Previous Willo Codicilo This Codicil hereby revokes provision X of my last will and testament dated

_______, all other provisions of my will remain in effect

Implied Revocation by Subsequent Valid Instrument – ch. 6, p. 140- Can have implied revocation by subsequent instrument if subsequent instrument contains

provisions that are inconsistent with previous instrument- FL 732.505(1)

HYPO: who gets the will Will #1 (2000) Will #2 (2008)My Picasso print in My Picasso print inmy living room to Anne my living room to BethRest and residue to Red Cross Rest and residue to Red Cross

- Clearly inconsistent -- later in time governs and Beth gets Picasso

732.506 – Revocation by Act- A will or codicil is revoked by the testator, or some other person in the testator’s

presence and a the testators direction, by burning, tearing, canceling, defacing obliterating or destroying it with the intent and for the purpose of revocation

o ENTIRE thing or nothing (cannot revoke only part) *Subsequent Writing must be valid (intent & formalities)- Be sure act meets precise words of the statute

HYPO: testator throws will away and it goes to dump, beneficiary goes to dump and gets will, is this valid for probate

- Yes, bc it has not been properly destroyed

Estate of Bancker – p. 143- Revocation physical act by proxy, testator told wife to tear up went to other room and

flushed down the toilet Will was destroyed but not according to statute, revocation invalid

o Need Presence!!! – even if testator heard

10/06/09

Jones v. Shifflet (In re Estate of Shifflet) p. 149- Florence Shifflet’s Will and codicil – was marked out names like below and initialed

o Sister Mary M. May and nephew Donald C. Jones and niece Patricia Joneso Brothers-in-law, Leroy J. Shifflet and Woodrow D. Shiffleto FLS. Witnesses Rollos and Heleno NOTE: FL doesn’t allow partial revocation by physical act 732.506

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FL does allow (1) physical act or (2) subsequent instrument revocation If going to have physical act need all or nothing

o Here, could also not be valid subsequent writing bc did not sign at the end

Dahly v. Dahly - Original will was marked up - 2nd wife argued it had been revoked - Dahly’s Will

o Named 1st wife and daughter as personal reps But they both had died before testator

o Testator had written on parts, tried to add heirs - Is this enough for physical act revocation

o NO – bc not sufficient for physical act - Could this possibly be revocation by subsequent valid instrument

o No, did not follow requirements – no sig or witnesses

Hypo- Testator mails the following to his named executor (who has custody of testator’s will)

o As soon as you get this note, please tear up my will. /s/ Joe Smith This is not appropriate physical act revocation, would be okay if it was in

his presence o What if added Witness 1 and Witness 2

Now not physical act – trying to do subsequent instrument – there is no present intent – they need to witness him revoking now not in the future

o I hereby revoke /s/ Joe Smith If signed with witnesses then there is valid subsequent instrument Need all mental elements: capacity, and present intent to either create or

revoke o Witness 1o Witness 2

Estate of Tolin ch. 6, p. 152- Tolin attempted to reinstate his friend as the residuary beneficiary instead of the Broward

Art Guild by tearing up the codicil to the will- After Tolin’s death it was discovered that the original codicil had not been destroyed,

only a high quality exact copy- Ct. said codicil not revoked

o Cannot tear up copy of a will or codicil needs to be the actual copy

Revocation by Operation of Law

- 732.507 – fla does not revoke by operation of law nor by subsequent marriage, birth, adoption

o If divorced, it would only void out the portion going to the divorced spouse.

Operation of Law Hypo

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2000 2006 2008T’s Will T & W T dies survived by sons40%To W for get divorced Tom, Tim, and Samlife, then restto my sonsTom andTim nothingTo sam

2006: does the former wife get to keep her share- Yes, it possible that the former

2009: the will stands, if the will had been revoked by operation of law - Then would devise to all 3 sons - All you do is cross out the part of the ex-spouse - Any provision in favor of former spouse becomes void - Treat as if former spouse died on date of divorce

Q: is T’s will admitted to probate or is it revoked?- Will is not revoked but any provision in favor of former spouse becomes void - Note that will or divorce decree can expressly override

Revival? Ch. 6, p. 141 part IVWill #1 Will #2My ABC stock to The Will herebyX rest and residue revokes all previous

Wills and Codicilspreviously made by meI leave my ABC stockTo X and Y and theRest and Residue(Intending to revive Will #1By crossing out the above)

Is will #1 Revived

States have 3 different views on “revival”1. Will #1 automatically becomes operative

- will is ambulatory – not fixed, alterable or revocable

3. Will #1 can be revived but there must be evidence that T intended to revive Will #1- a will can’t dispose of property till T’s death – but upon proper execution it does revoke prior will when executed

3. Will #1 cannot be revived without new execution- THIS IS WHAT FL FOLLOWS

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In group 2 and 3 states what can a will do when executed- Cannot dispose of property - But can revoke an earlier will

So, how dead is that earlier will - No matter how much intent you have the 1st one is not valid

732.508(1) – Revival by execution - the revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will

(2) the revocation of a codicil to a will does not revoke the will, and in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provision of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been changed

What can you do in FL to bring the terms of Will #1 back? Ch. 6, p. 141- 732.511 Re-execution of the will (formalities)- 732.5105 Republication of wills by codicil

o In real life just make a new will

What if revoke a Codicil? Ch. 6, p. 141Will (2000) Codicil (2002)1-15 The codicil hereby revokes 5 of5 – devise my my last Will and Testament datedAT&T stock to 2000 and replaces the devise thereinmy son, John with the following:

My AT&T stock to my daughter Mary

FL 732.509 – revocation of a will revokes all codicils to that will

Does revocation of Codicil revoke the Will? = NO- All jurisdictions hold that the revocation of a codicil does not revoke the will

Does revocation of Codicil reinstate provisions of the Will affected by Codicil = YES- 732.508(2) *FL presumes revocation of codicil and reinstates will

10/8/09

2 ways in which Fl revokes a will 1. By subsequent written instrument 2. By act

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.507 – treats ex-wife as if she died on the day of the divorce

Chapter 7 DRR

Incorporation by Reference – p. 155

- 732.512(1) o Writing/document in existence at time o Language in will manifests intent to incorporateo Language describes the writing sufficiently

- 732.512(2): Acts of Independent Significance – 155o Will may dispose of property by reference to:o Acts or events that have significance apart from the willo Ex: Rest and residue of my estate to my children who survive meo Ex: Car that I own at my death to my nephew Ned

What if testator got different car – Ned will get the new car Bc has independent significance – nothing to do with changing the will

o Ex: $1000 to each person who shall be in my household employ at the time of my death

Acts of independence significance

732.512(2) last sentence: The execution or revocation of a will or trust by another person is such an event

HYPOo Testatrix’s Will Son’s Will

Residue to my son, Residue to mybut if he predeceases step-daughter,me, to the residuary Nataliebeneficiaries of hislast will and testament

What if at the time Testator executed her will the son had not written a will- Then can use this – bc the act of son writing a will is of independent significance

Q: Once makes will- Natalie is getting all of Son’s will and that of testatrix

Q: Would have Natalie gotten it if he said to my son and he died intestate - NO,

732.515: Separate Writing for Tangible Personal Property - Only tangible personal property (not trade or business property or property specifically

devised) – NOT real propertyo not stock bc intangible, cannot have truck that is for business but can reg truck

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o can you leave your car = YES, unless specifically devised in the will o what about antiques, jewelry = YES

Formalities for Letter- Signed by testator

o Should be signed before and after will execution - Describe items and devisees with reasonable certainty

o Should keep letter with will but not required - Need a properly executed will and this becomes part of the properly executed will - Reference to unattested writing for tangible personal property

Dependent Relative Revocation (DRR) Doctrine of Second Best {732.508}

Is a doctrine invoked to prevent intestacy in situations involving an invalid will- It requires (the revoked will needs to be VALIDLY revoked)

o 1) a finding that the testator preferred a revoked will to the intestacy that results from the current invalid will AND

o 2) the wills are similar to each other

1. “Anti-revival” Caseso Will #2 was validly executed revoking Will #1. T changes his mind and destroys

Will #2 mistakenly thinking that he has REVIVED Will #1 (but anti-revival jurisdiction FL Stat. 732.508(1))

Can we say revocation of Will #2 was conditional of revival of Will 1? Would want to argue was conditional revocation

2. Because of New “Will Cases – T has Will #1 then attempts to execute Will #2 but something goes wrong (either no capacity or formalities) with Will #2. T thinks he has new will so destroys Will #1

- Can we say revocation of Will #1 was conditional on validity of Will #2- would need to ask whether testator would want 2nd best then would apply

DRR, and treat the revocation as conditional - if 2nd best is not what testator wanted then would apply intestacy

Example 1 (ch. 7, p. 159)Will #1 Will #2To Red Cross One slight changeBroward Hosp… in charitable devise

Q: Assume will #2 was invalid - Was will #1 revoked by valid subsequent instrument - No, there would not be DRR bc no valid revocation

Example 1 (ch. 7, p. 159) with different factsWill #1 Will #2To Red Cross To my children

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Broward Hosp…

Will #1was revoked by physical act (tore up) – so only apply DRR if closer to what the testator wanted

DRR (Dependent Relative Revocation) Analysis for Because of New “Will” Case ex. 3 p. 160

o 2. Because of “Will” Cases – “Will” #2 never valid. Will 1 physically revoked

10/13/09

DRR (dependent relative revocation) 1. “Anti-revival” Cases

Will #2 was validly executed revoking Will #1. T changes his mind and destroys Will #2 mistakenly thinking that he has REVIVED Will #1 (but anti-revival jurisdiction FL Stat. 732.508(1))

1. 1st best choice is will #1 Can we say revocation of Will #2 was conditional of revival of Will 1? Look at 3 things:

1. First best choice2. Weigh other options

1. Conditional revocation of will #2 or intestacy3. Whichever one is closer to first best

Doing the DRR analysis doesn’t automatically lead to applying DRR and deeming revocation to have been conditional

Only apply DRR if can show based on testamentary scheme that testator would have preferred second best will to intestacy.

2. Because of New “Will Cases – T has Will #1 then attempts to executed Will #2 but something goes wrong (either no capacity or formalities) with Will #2. T thinks he has new will so destroys Will #1

Can we say revocation of Will #1 was conditional on validity of Will #2

DRR (Dependent Relative Revocation) Analysis for anti-revival case ex. 5 p. 160

HYPO1. Anti-revival Cases – Will #2 was valid but was revoked

Will #1 Will #280% to 70% to

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granddaughter granddaughter20% to Son 30% to Son

Q: Subsequently Will #2 is Physically revoked with intent to Revive Will #1, is it brought back?- Will #1 will not be brought back bc FL is anti revival

Q: Does our guy automatically die intestate?

Analysis: 1. Determine 1st best 2. Compare will 1 (best terms) to the options: intestacy and will 2 3. If will 2 is closer to 1st best then apply DRR

a. If

- A DRR analysis doesn’t automatically lead to applying DRR and deeming a revocation to have been conditional

- Only APPLY DRR if can show based on testamentary scheme that testator would have preferred second best will to intestacy

Analysis:/HYPO(1) Determine first best

Will #1 (80/20) – can’t 732.508

100% to son 70/30Intestacy? Will #2

(2) Compare 1st best terms (Will #1) to Will 2 and intestacy(3) If Will #2 is closer to first Best APPLY DRR – Will #2 is deemed not

Revoked – Apply DRR

Change Facts- Will 1 – 80 to granddaughter 20 to son in will 1- Will 2- 70 to granddaughter 30 son

Granddaughter would now want DRR analysis - Under this she wanted to die intestacy

HYPOWill #1 Will #2$2milTo Red Cross One slight charity change$2milBroward Hosp

Q: T thought “Will” #2 was valid so T Physically revoked Will # 1-

Caveat: If Will #2 only uncompleted plan – STOPNo “first best” so can’t do DRR. If “Will” #2 completedPlan but ineffective attempt, try DRR

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o Analysis: (1) Determine first best

“Will” #1 – can’t probate

Distant Relatives Similar CharitiesIntestacy? Will #2

(2) Compare 1st best terms (Will #2) to Will 1 and intestacy(3) If Will #2 is closer to first Best APPLY DRR – Will #1 is deemed not

Revoked – Don’t apply DRR

Stewart v. Johnson p. 161- Because of New “Will” Cases – “Will” #2 never valid; Will 1 physically revoked- Bc when cannot find will or find destroyed – presumption is that testator destroyed

Will #1 Will #2To foster Foster daughterdaughter & wife (Never valid)& wife

T thought Will #2 was Valid & Will #1 not found

Caveat: If Will #2 only uncompleted plan – STOP No “first best” so can’t so DRR. If “Will” #2 completed

Choices are - Intestacy Or- Will 1

Analysis:(1) Determine first best

“Will” #2 – can’t probate

Wife foster daughter & wifeIntestacy? Will #2

(2) Compare 1st best terms (Will #2) to Will 1 and intestacy(3) If Will #2 is closer to first Best APPLY DRR – Will #1 is deemed not Revoked –

Don’t apply DRR

Lost or Destroyed Wills –p. 165 Presumptions - If Will contestants prove T had custody of the Will and the Will found physically

mutilated, presume T intended to revoke- If Will contestants prove T had custody of the Will, and the Will missing, presume T

destroyed it with intent to revoke

Upson v. Estate of Carville – Ch. 7, p. 167- T executed will in 1965 that devised her estate to her grandchildren

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- Will could not be found when she died- T’s daughter, Dianna Upson, opposed probate, so she’d be named sole intestate heir- Evidence showed the T was meticulous in her financial affairs and that she kept her will

in a metal box in her office sewing room. The metal box was not found after her death- Court noted presumption (if can’t find will, presume T revoked)- But agreed with trial court that here sufficient facts to overcome the presumption (entire

metal box missing and daughter lived in vicinity)

Compare -- Estate of Baird, p. 167- T’s Will not found in his box of important papers- Rest of papers still in the metal box- Ct. applied presumption (if can’t find will, presume T revoked)- Here Ct. found there weren’t sufficient facts to overcome presumption- (e.g.) person with adverse interest – who would benefit if will revoke – lived very far

Here: since the metal box was still there not enough to overcome presumption - Need to determine whether person had access to box or was in with someone who did

have access

FL -- Estate of Baird - In FL once contestants prove T had custody of the missing will, proponent must come

forward with evidence that T did not revokeo Once the proponent introduces that evidence then the presumption vanishes

Baird Court explained:- Presumption requires a finding of revocation, unless the proponent of the missing will

comes forward with evidence showing Will had not been revoked.- If this occurs, the ‘presumption,’ vanishes, although the facts which give rise to it would

still permit, though not require, the court to conclude that the will had been revoked- ONLY SHIFTS THE BURDEN OF GOING FORWARD

Ex: undue influence – shifts the burden of proof (if can show all 3 then contestant wins shifting the burden)

- Lack of capacity – the presumption is that he was incapacitated at time – only shifts the burden of going forward

Proving Contents of lost or destroyed wills- If will is lost and presumption of revocation is overcome, the will can be probated as long

as there is satisfactory proof of its contents.- 733.207 – still need a disinterested witness if have copy – if don’t have copy need 2

disinterested witnesses

10/20/09Chapter 8 Ambiguity & Chapter 9 Devises, Abatement, Ademption, Accession, Exoneration, Taxes

732.615- NEW LAW

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Allows a court to reform to correct mistakes

Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by CLEAR AND CONVICNING EVIDENCE that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law, where in expression of inducement...

Reforming a document – reformation involves adding language or changing the language to implement intent

Vs.

Construing Ambiguous Language – is interpretation of language in the instrument. Ambiguity will not deal with 732.615. (PERPONDERANCE OF EVIDENCE)

Mistake in the Execution- Testator thinks he is executing another document (e.g., a power of attorney) but executes

his will- Covered by 732.5165 and can void the will

Mistake in the Inducement- Testator mistaken in facts leading to a testamentary disposition he would not otherwise

have used (e.g., thought son had joined a commune but didn’t)o Where you are wrong about the facts that led to creating the devise or the will

- Not sufficient to void a will under Fla. Stat 732.5161 Forsythe v. Spielberger

Scriveners Mistakes (mistakes in the document, not in the inducement)- No ambiguity (patent or latent) – just mistake/error)- Cannot void

Ambiguity

Latent ambiguity- A latent abiguity arises when applying the words of a will to the subject matter of a

devise or to a devisee renders the will ambiguous.Ex: Testator devises to a corporation which changed names...see pg 186

- Not ascertainable from reading will (e.g., to cousin Tom Smith and testator had two cousins named Tom Smith)

- Not sure in Fl, seems like you can bring in extrinsic evidence one case says so but not a Fl supreme court case

- In cases dealing with “construction of a will” because of latent ambiguity:

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The intention of the testator is the polestar of any will construction proceeding (say this on test) pg 188

o The court must look to 4 corners of the will 1st then go to testators intent

Patent ambiguity- Obvious from face of will (e.g., refers to same devise differently in will)

Determine testator’s intent- Extrinsic evidence allowed in when latent ambiguity- Intent determined by four corners of instrument if patent ambiguity see pg 189

Court said that even if you are within four corners of the doc, the latter provision will usually prevail as being the last expression of intention of the testatrix where the provisions refer to the same subject matter.

- Some courts (Fla. 3d DCA) seem to allow extrinsic evidence even if patent ambiguity

What if court says no ambiguity? New law says can reform but look at ques for professor to see how she answered.

- Can’t bring in extrinsic evidence- Ct. trusts Fla. Stat 736.0415 court can reform trust even if unambiguous if it is proved by

clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law

o New law – Can also reform a mistake in a Will

What does it mean to say that there are acts of independent significance?- 732.512: things can happen to property, but if there was independent significance

o Ex: trading the car, in will said nephew gets my car – still gets the new car bc getting new car was independent significance

Problems due to Time Gap

Before BetweenWill Will & AfterExecution Death Death

Will TestatorExecuted Dies

HYPO: what if there is a painting given to someone but at time of death painting is gone?- Look below to answers

4 Major Classification Schemes

1. Specific Devise – devise of a particular item of property (e.g., my boat) or particular type of property (e.g., my ABC stocks).

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2. Demonstrative Devise – (combination of general and specific devise) fixed amount payable from a particular fund or from the proceeds of a sale of an item (e.g., A gets $5,000 from the sale of my IBM stock; B gets $10,000 from my money market account at Citibank) – amount of money from a particular source - if any is left over is classified as a general devise – 733.805733.805(2) – bifurcates a demostrative devise – treating it the same as a specific devise to the extent it is paid for a specific SOURCE and treating it as general devise to the extent it is paid from general assets. Thus Fla Stat 733.805(2) may wholly or partially transform a demonstrative devise into a general devise for purposes of abatement. See pg 201

Pg 199 – There are two essential components of a demonstrative legacy:1. It must be an unconditional gift in the nature of a general legacy AND2. It must indicate the fund out of which the legacy is to be satisfied.

3. General Devise – devise of an amount without regard to a source (aka Pecuniary) (can be fixed $ amount (e.g., $10,000 to A) or amount from a formula (e.g., ½ of my adjusted gross estate)

a. – is not particular item and not from a particular fund

4. Residuary Devise – devise of the assets of the estate which remain after the provision for any of the other types of devises

a. e.g., the rest and residue of my estate “to A” or “to my children” or “to X charity” or

b. Rest and residue of estate could “pour over” into an existing intervivos trustc. If do not have this clause and there is left over money it goes to intestacy

EX of “pour over” See page 775 Article FOURTH: All the residue of my estate, wherever situated, including lapsed devises, but expressly excluding any property over which I may have power of appointment at my death, I give to the then acting trustee under the trust agreement executed to me on _______, 20___, before the execution of this will, with NORETHERN TRUST [] of _______, _______, as trustee ()

HYPO: Pour over into an intervivos trust: Will: ring to A, Car to B, rest and residue of my estate to pour over into my intervivos trust – What is the property of that trust

- Property: is anything already in the trust plus the assets obtained from probate- NOTE: assets that form the residue don’t avoid probate – this is done to capture any

possible leftover stuff - Reason to do this is that will is public but the trust is private so might not want everyone

to know what you are doing 732.513: Devises to Trustee

- Fla legislature has specifically sanctioned the ability to pour over assets into a trust o Can revise a trust without having to re-execute the will

10/22/09

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733.805: - will can provide the order in which devises abate

In re Estate of Potter- If husband predeceased, House to daughter- decedent made will that gave specific devise to her daughter the house- her son got a general devise - gets money which is equal to the amount of the house from

the trust o There was not enough money in the trust to pay the son

- If daughter gets house, equivalent $ to son before spilt trust equally- Son had general devise- Which abates first – the general (sons share)

ABATEMENT- If not enough in estate to pay all creditors, expenses and all devises then some devises

abate - Some states (not Fl nor UPC) still distinguish btw real and personal property for purposes

of abatement (with personal abating before land)- Testator can provide for an alternate scheme if doesn’t like scheme

733.805 (Does not distinguish from real or personal property BUT does distinguish from type of devise i.e. general, specific, demonstrative, etc.) If Testator doesn’t provide for an alternate scheme and not enough property to cover debts and devises abate in the following order:

1) Property passing by intestacy2) Residuary3) Property not specifically or demonstratively devised (general)4) Demonstrative devises 5) Specific devises

HYPO: Testator’s Will- My Picasso print to my good friend Tom, My IBM shares to good friend Joe, Rest and

Residue of my estate to my beloved childrenWhat if testator gets wiped out - but still has IBM and Picasso

- If there is no provision in the will the residuary gets wiped out first

Q: What if 100K from the sale of by IBM stock – how do you characterize the devise- It is demonstrative; so that is going to abate before the specific devise to tom

o Demonstrative goes before specific

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Q: what if 10K stock to anglea - This is general devise, would go first - Last one standing is specific

Priority of Claims p.189- If costs and claims exceed assets, some creditors won’t be paid in full- If assets in estate are insufficient to pay costs and claims

733.707: Order of Payment 1) First pay (Class #1) all administrative expenses (including fees for personal

representative and counsel)2) Then pay (Class #2) funeral (up to $6,000)3) Then pay (Class #3) federal taxes and Medicaid4) Then pay (Class #4) Medical expenses of decedent during his last 60 days5) Then pay (Class #5) Family allowance capped at $18,0006) Then pay (Class #6) Child support arrearages7) Then pay (Class #7) Debts incurred in decedent’s business after death8) Then pay (Class #8) All other claims

Ademption of Specific Devise by Extinction (ABE)

- what happens if there is specific devise and the property no longer exists - A specific devise is adeemed (ineffective) if the testator no longer owns the specific

property at death. o Only a specific deviseo E.g T had the property when he executed the will but not at death. The testator

can deal with this type of scenario within his will and ademptioon by extinction will not be an issue.

Ademption by Satisfaction (ABS) – (diff from ABE)- T gave devisee a gift during lifetime in satisfaction of a devise

Ademption by Extinction FL – FL uses intent theory1. Look to the intent of the testator (courts use intent theory)2. FL statutes also applicable:

a. 732.605(1)(c) – ABE but only deals with securities, if securities merge, get sold, etc.

b. 732.606 – Special situations where specific devise not adeemed

EXAM NOTE: - I THINK THIS THING IS WRONGISSUE – PROPERTY IS NO LONGER IN EXISTENT OR OWNED BY TESTATOR AT HIS DEATH. WHEN YOU HAVE A SPECIFIC DEVISERULE – WHEN DOING THE ANALYSIS GO TO THE STATUTE FIRST!

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If the fact patter follows the statute then use statute and devisee gets what the statute says – and analysis is done (no need to do intent theory). BUT if the facts do not fall within the statute then you can bring in evidence of what the testator intended to determine what the devisee gets.

FIND IDENTITY THEORY – MAJORITY APPROACH – NOT FOLLOWED BY FLA

Significance of Reason Property is Not in Estate- Fla. Stat. 732.606 and 732.605 provide rules concerning ademption of specific devises- If one of their provisions applies, the devisee will receive the item or amount provided by

statute- If none of their provisions apply, determining whether the item was adeemed require

examination of the Testator’s intent See Hall v. Jones (In re Estate of Jones)

732.606

(1) if specifically devised property not in the estate because it was sold by guardian of testator, the devisee is entitled to $ amount equal to sale price (or award)

- If, however, testator is adjudicated no longer incapacitated and survives 1 year, specific devisee not entitled

Why the 1 year rule?- Maybe legislature determined that if testator no longer incapacitate for 1 year he could

have revised his will

(2) (applies only when there is a sale by the testator) Provides that specific devisee entitled to any fund remaining that are unpaid proceeds of a sale, condemnation, insurance, or foreclosure of property that was specifically devised

- it gives the devisee the right to any remaining specifically devised property - it also gives the devisee the right to

(a) any unpaid purchase price and security interest if the testator sold the property before death(b) any unpaid part of the condemnation award (c) any unpaid insurance proceedsAND(d) property owned bc the testator foreclosed on property covered by a specifically devised obligation or took property in lieu of foreclosure

Hall v. Jones (Estate of Jones) p. 194 – THIS CASE GAVE US THE INTENT THEORY- Testator (Mr. Jones) had will with 11 specific devises and residuary clause. Relevant

devise was to niece Karen Hall- “I give equitable interest and/or income from former home in VA”

o Had already sold the house at the time he made the will

1981 T sold his Feb. 1982 July 1982 Dec. 1982VA home for a T executed Note prepaid T died findNote from buyer his will In full for $40,000of $42,000 $42,054 Money market

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payable in 120 mo. & $2,054 reg.Installments account(10 years)

Court noted that the statutes didn’t apply and ruled evidence of intent relevant- Problem is that debtor paid off 10 year note in full

Court said will follow the minority jurisdiction - If the statute does not apply, look to the intent of testator - Since he did not spend the money shows might have wanted her to have it, also that

testator did not plan that it would be paid in full

Ott v Ott p. 207o Richard Ott’s Will

All my interest in Casa de Tesoro, Inc. (FL corp.) to my children (from previous marriage)

Rest and residue to current wifeo Before his death Richard Ott had sold his shares of stock in the companyo As payment for the stock Ott received a mortgage and a promissory note from the

buyero Was the devise to the children adeemed or does 732.606(2) apply? applies to all

testators, not just guardians.

732.606(2)(a) A specific devisee has the right to the remaining specifically devised property and any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest.

o How would you draft to avoid an exoneration problem?

Chapter 9 Accessions, Accertions, Exoneration & Chapter 10 PretermittedAccessions

(Dividends $10,000)Before BetweenWill Will & AfterExecution Death Death

Will executed Testator diesT’s Will“My 100 shares If can trace the dividends ($10,000) to an account, doesof IBM stock to Albert get the $10,000 or does it go to residuary devisee?

Dividends distributed before death are not part of devise.

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Albert” Rest and 732.605(2)Residue toAmerican RedCross

Accessions – FL 732.605(2)o Distinction between

Post-execution /pre-death accessions (does not go to devisee) & those occurring after death (devisee gets it)

Stock Splits

Before BetweenWill Will & AfterExecution Death Death

Will executed Testator diesT’s Will“My 100 shares IBM’s actions convert 1 share to 2. (1 share valued at $50of IBM stock to converts to 2 shares each valued at $25.) Is Albert entitledAlbert” Rest and to 200 shares or only 100?Residue toAmerican Red FL 732.605(1)(b) – for specific devisees He gets 200 sharesCross

Importance of Classification of Deviseso Why is classification important for ademption by extinction?

Only “specific” devises are subject to ademption by extinctiono Why is classification important for abatement?

Absent language in the will to the contrary, devises abate from bottom up (residuary, general, demonstrative, then specific)

o Why is classification for accession important? Devisee gets stock splits or other actions initiated by the company if

specific DeviseeEXAM NOTE: “My” 100 shares, “My” share = court will see the “My” as specific property of testator and will find it is a specific devise. BUT if no MY not specific

Exoneration (Encumbered Property)

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o Common law – if T devised encumbered property, the specific devisee got it free and clear (i.e., personal representative would use assets of the estate to pay off the mortgage or lien – reducing residuary)

o FL?o 733.803o Statute reverses the common law

Exoneration drafting?o “I give to my daughter, Doris, all my interests in my vacation house in Naples,

FL” “subject to any mortgage indebtedness on the property” OR “free of any mortgage indebtedness which I direct shall be paid from my

residuary? Exoneration default statute

o In FL what result if devise of the vacation house didn’t mention the mortgage indebtedness one way or the other?

o Will says only: “I leave my vacation house in Naples, FL to Doris.”o 733.803o Doris takes house subject to the mortgage indebtednesso Same issues arise with cars, boats, or other encumbered property o Now that we have reformation MAY BE ABLE TO ARGUE that the will should

be reformed.

What if the devised property is “upside down”? Depending upon the words of the will (i.e. either “free and clear” or “subject to the

mortgagee”) If “free and clear” then the devisee gets the house without paying anything If “subject to” it would be the choice of the devisee to either take property as is or decide

to not to take property – they don’t have to accept the property.

PRETERMITTED CHILDREN If child is born after execution then the testator probably would have wanted to leave something to the child. Florida Statutes created to try to further testator’s intent – therefore FL will give them what would the child have gotten intestacy. FL – Only for a child BORN AFTER EXECUTION OF WILL.

Challenge to a Will when the T leaves out a child (intentionally) – Lack of Mental Capacity. In some states, even if child born before will they fall under “pretermitted” statute.

H’s WillH & Wife #2 marryWill executed

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$80,000 to my son Bob Section 733.805rest and residue to my wifeTwins Born then T dies never revised will If T doesn’t provide for an alternate schemeH dies with assets of $300,000 devises abate:survived by W, twins, and brother Property passing by intestacyWill is VALID Residuary732.302 Distribute pretermitted Property not specifically orthen go back to will demonstratively devisedPay $120,000 to twins Property specifically orPay the general devise $50,000 demonstratively devisedResiduary to wife - $300,000 - $170,000 = $130,000

Woodward v. Smith pg 215T dies leaves residuary to Brain (P) and Jay (D) and three others. Codicil leaves Jay and his wife specific devise of T’s interest in 3 operating sugar cane farms. Codicil did not address the outstanding loan. RULE: “The specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense on the residue of the estate ONLY WHEN THE WILL SHOWS INTENT” and “a GENERAL DIRECTION in the will to pay debts does not show that intent.”

Apportionment of Taxes – SHE DID NOT GO OVER THIS AND BELOW CASE

McClaran v. SunTrust Bank, SW FL (In re Estate of McClaran) (2002)

Recitation Clause – will explain ambiguities of why leaving someone out - And unequal distribution

Pretermitted Statues - Deal with unintentional disinheritance of someone

732.302: Pretermitted Children (BORN OR ADOPTED IN TIMEFRAME 2 – EVEN IF BORN IN TIMEFRAME 1 AND ADOPTED IN TIMEFRAME 2 HE IS PRETERMITTED)When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s party by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:

(1) It appears from the will that the omission was intentional (something in will saying OR shows something in will that testator intended to omit) OR

(2) The testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will

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NOTE FOR EXAM: What is “substantially all”? We dont know yet, there will be an argument either way.

Pretermitted Child- Will Executed- Child Born- Testator dies before fixing Will

Pretermitted Child Hypo

Before Between AfterWill Will & DeathExecution deathH & W H executes Will Twins H/Testatormarry $50,000 to Bob Born!!! Dies never

Residue to W having revisedhis Will

Q: Is this will valid = YES- Paragraph 1 applies - Its paragraph 2 at issue here = he needs to have children before the will was executed to

be pretermitted

FL- only governs if child born after the will is executed and before death.H & W marry- H executes Will $80K to Bob residue to W- Twins born- H/ testator dies never having revised the will.

Q: H's probate estate worth $300K- - Is the will valid? YES- not valid subsequent execution or physical act- 732.302- Twins are pre-termitted- exceptions don’t block.- How much do the twins get? 732.302-

o Share of estate- to what child would have received under intestacy- 732.102, 103.

Q: Assume H’s estate of $300K. H survived by W, Bob and the twins. What WOULD the twins have received under intestacy? W?

- Wife Under intestacy would have gotten half of $300,000 = 150K (if intestacy) - Each child is descendenat so if intestacy would split balance of $150,00 three ways- Each get 50K – 732.103(1)- What does the wife get

o Distribute pretermitted then go back to the will 733.805o Gets 120K

- What does Bob geto 80K – need to pay the general devise then the wife gets the left over $120k

- Order of the process:o Find out what would have happened under intestacy (732.102), then go to

abatement statute (733.805) to see who loses out, then distribute accordingly

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What if H & W have child Ann before will execution (ALWAYS LOOK FOR TIMEFRAME 2) H executes will- half to W; half to Ann

o H’s estate worth $300,000 Ben is born H/Testator dies never having revised his will Is Ben pretermitted? 732.302 - YES

o Is will valid? Yeso How much does Ben get? NOTHING

Why? Because Ann is the child of both T and Wife so intestacy statute says Wife gets all estate if no children are from a previous marriage. Therefore, intestacy does not give the children anything.

So we must then go back and distribute pursuant to will and W & A get half, Ben gets nothing.

This is because of the change in the intestacy statute regarding wife.

BAD ATTORNEYING CASE:Estate of Azcunce

May 1983 August 1983 March 1984 June 86 Dec. 86Will 1st Codicil Birth of Patricia 2nd Codicil T’s death at

age 38

Will beneficiaries- Spouse and his then-born children Leslie, Natalie, and Gabriel- the will contained no provision for after-born children- In light of the codicils, when is the Will deemed executed?

In FL the will is deemed republished as of the date of the codicil – 732.5105- Patricia was born in time frame #1 (before will deemed executed – here republication) - And in Florida only children born in time frame #2 are pretermitted

Once you do a codicil – it republishes the will as the date of the codicil (like executing a new will)- 732.5105

Exam Note: ALWAYS LOOK AT TIMEFRAME 2 (between execution of will and death) IN FACT PATTERN TO DETERMINE WHAT IS GOING ON.

11/3/09

Pretermitted child

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- 302 allows the child to get what they would have gotten at intestacy - Does not void the will, but distribute through intestacy first

Before BetweenWill Will & AfterExecution Death DeathWill executed testator gets testator dies

Married

HYPO: late in life 2nd marriage, 2nd spouse had substantial assets. T leaves his will unchanged assuming all of T’s estate will pass under the will to his children from the prior marriage. How much is new spouse getting?

- 732.302 (pretermitted spouse statute): new spouse is pretermitted: she gets ½ of the estate 302(3)

- If T executed a new will she would not be pretermitted - Can also use a class designation (ex. To my children, instead of naming them)

Pretermitted Spouse- When testator marries after executing a will (time frame 2)- 732.301 allows the surviving spouse to claim an intestate share of decedent’s probate

property (as a pretermitted spouse) unless one of these exceptions applies:(1) Provision has been made for, or waived by, the spouse by prenuptial or

postnuptial agreement;(2) the spouse is provided for in the will or

a) needs to be executed before marriage ANDb) made such provisions in contemplation of marriage to that named person

(3) the will discloses an intention not to make provision for the spouse

Exception 2: Provided for in the will- 732.301(2) exception blocks pretermitted spouse when:

o Spouse (married after will executed) provided for in the will- Note: statute doesn’t say how much – BUT THERE IS A TRICK

Pg 224 – Case below- FL case Estate of Ganier – ct. held that a person named in the will is not blocked i.e. the

spouse has not been ‘provided for,’ unless the testator both1) Provided for a person named in the will executed before marriage and2) Made such provision “in contemplation of marriage” to that named person

- Where a devise to an individual who later becomes a spouse, burden on the spouse to show the devise NOT made in contemplation of marriage

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HYPO: couple that has lived together for many years. They leave each other a significant amount of property. The wills are valid. They didn’t believe they needed to get married. Testator gets ill, and they decide to get married after all. No children. Testator dies.

-       Is the spouse getting everything?-       OR is she getting the amount in the will – burden on wife to prove – here would get

everything in the will bc pretermitted

Exception 3: Will discloses intent to not provide- 732.301(3) exception blocks pretermitted spouse when:- Will discloses an intent not to make provision for (future) spouse- WORDS HAVE TO BE IN WILL: ex:

o I deliberately make no provision for any future husband I may have because I want to leave my property to my children.

o I am contemplating marriage to Wanda but I am not providing for her in this will because she has been amply provided for with non-probate assets (or because she is independently wealthy)Under the above examples she may still be able to take under the ELECTIVE SHARE staute.

Recourse of future spouse blocked by 731.301(2) or (3)- A future spouse not deemed pretermitted because of exceptions (2) or (3) can’t get

equivalent of intestate shareBUT- May make a claim for a spousal elective share (30% of elective estate)

o Only if blocked by the other 2 methods

Divorce and Remarriage- 732.507(2) if testator divorces, the provisions in favor of former spouse are void

o .507: says when divorced the spouse is treated as dead (unless otherwise stated in divorce judgment or will)

Fredericks v. Shrines Hospitals for Crippled Children- Facts: decedent had will that said all to his wife, but if she dies 1st then to hospital

o Decedent and wife got divorce o Decedent had son who was sole heir and claims that he should get money bc will

is void since the divorce - Issue: Does the divorce invalidate the will? - Holding: no, hospital gets the money

When Ex-Spouses RemarryBaurer v. Reese (In re Estate of Baurer)

H & W H executes Feb. 1957 Oct. 1957 H diesmarry Will H & W divorce H & W July1965 Sept. 1956 remarry 1962

House to WRemainder to relatives

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Wife is pretermitted - Bc when she was divorced it voided her portion of the will; only look at remarriage so

she gets all of the property o Court said was not provided for in the will

- What is the other argument – the intent of the testator o Is a weak argument – bc the will demonstrates the intent that she only get the

house

Negative Disinheritance- If Testator wants to disinherit someone, must leave his estate (probate assets) to someone- If there is partial intestacy, the “disinherited” heir gets his intestate share

Hypo- T’s Will: Because my only son, S, has neglected me in my declining years, I leave him

nothing at all. Instead, I leaving everything I have to my best friend, F.Q: What happens if F dies before T and T fails to revise his will?

- No alternate taker- If the son is the only relative he is getting it; if you really want to block son need to have

back up plan of charity

11/5/09

Lapse Issue Before BetweenWill Will & AfterExecution Death Death2000 2005 2008T’s Will Bud died Testator dies“$50,000 to my Never havingbest friend Bud” revised his will

“Residue to Red Cross”

Bud’s devise lapsed, Bud’s portion is added to Red Cross’s residue

*FL antilapse covers time period 1 and 2 (some states only cover time period 2)

TRIGGER FACT – TF 1 Will executed; TF 2 Marriage, TF 3 Death without new will adding new wife.

Lapse and Anti-Lapse- Anti-lapse -- PURELY STATUTORY

o Fl covers time frame 1 and 2- Anti-lapse statutes (when they apply) provide for a substitute taker for the deceased

devisee

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o Looking for a Dead devisee for anti lapse - FL 732.603:

o Note introductory clause:(1) Unless Contrary Intention Appears in Will Language that blocks the application of antilapse statute (3) antilapse is supposed to step in when the testator has not thought of

what would happened (unintentional omissions) (3) says survivorship language is enough to block

o Blocks bc shows testator thought of it In UPC need to have clear blocking language

732.603(1)- Unless Contrary Intention Appears in Will- Type of devisee covered by our anti-lapse

o Lineal decedent of grandparents of the testator (including GPs)o (relatives)

- (a) and (b) – when devisee died (time frame) or (c) deemed dead (e.g., killer)o If you kill the testator you are deemed dead

- Who replaces covered dead devisee?o “the devisee’s surviving descendants”o Descendants of dead devisee only!

Lapse Hypo

Before BetweenWill Will & AfterExecution Death Death2000 2006 2008T’s Will Angela died T died never“$1 million having revisedto Angela” will

“Residue toAmericanRed Cross

Q: Angela’s devise lapsed does anti-lapse apply? T’s Will - $1 million to Angela; Angela predeceased T What happens to the devise?

- If T’s will had provided for an ALTERNATE taker, the alternate taker gets the devise:o $1 million to Angela but if Angela predeceases me, $1 million to David

- If no alternate taker and anti-lapse does not apply to substitute someone, then: go to American Red Cross.

Lapse Issue: Covers TF1 AND TF2. Covers a devisee who was DEAD at the time of execution.

EXAM NOTE: Trigger facts, YOU HAVE A DEAD DEVISEE his gift has lapsed, what happens to his money? SEE ANTI-LAPSE STATUTE TO SEE IF IT APPLIES. 732.603.

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732.604: Residuary or Intestacy(1)If a devise other than residuary fails (and anti-lapse 732/603 doesn’t substitute) devise goes to residuary (2) if the residue is devised to 2 or more and one fials (and anti lapse 603 doesn’t

substitute) the other residurary devisees take Or intestacy

Language that blocks anti-lapse (substitution of descendants)- Check if any blocking language- Alternate taker blocks

And- FL blocks substitute gift with any language of survivorship attached to the gift (Different

from UPC)732.603(3)(a)

- “my IBM shares to my nephew Albert if he survives me”- Survivorship language Blocks anti-lapse- Devise to Albert lapses- Goes to residuary

FOR EXAM: Will anti-lapse statute apply?- Step 1 – Check if any blocking language – “Unless contrary intent appears in will”

o If alternate taker – blockedo In FL – If language of survivorship attached to gift – blocked

- Step 2 -- Check degree of relationship required in jurisdiction’s anti-lapse statute between dead devisee and testator – only certain devisees are covered. (Gparents or descedents of G-parents of T are covered under antilapse – Spouse is not covered by antilapse.)

o Most anti-lapse statutes require consanguinity – if the predeceased devisee falls within this category then devisee’s surviving descendents will take, per stirpes.

o (don’t cover deceased friends or dead spouse)- Only grandparents and descendants of grandparents count!

What type of devisee covered in FL?- GP or T or lineal descendant of GP of T- What if Angela is T’s sister?- Is a sister a lineal descendant of T’s GP?

HYPO: Assume Angela is T’s sister: THIS IS ON THE EXAM GP

Parent

Testator Angela Bob

T’s Will$1 million

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to Angela ->Angela has will: Angela’s Will -> Residuary to NSU

Residuary to Anti-lapse Statute provides for only specifiedRed Cross substitute takers for a covered dead devisee

***DO NOT GIVE TO ANGELA’S DEVISEES (NOT NSU)***GOES TO RESIDUARY IN T’S WILL -> Red Cross. The fact that Angela has a will is irrelevant.

ONLY DESCENDANTS

*Dead Devisee=Lapseo Angela’s Descendants

Angela

C1 C2 C3

GC1 GC2

Why covered devisee’s descendants?- Underlying assumption is testator would want such people to be substituted for deceased

devisee- Why not substitute the dead devisee’s spouse?- Presumed intent would be for descendants (keeping with the consanguinity presumption)- Recall only relatives qualify as covered devisees

Lapse & Anti-lapse AnalysisDead Devisee? Alternate Taker in Will? YES Alternate taker gets deviseNO Contrary blocking language YES Gift to Residuary or Intestacy

NO Dead devisee covered by ant-lapse stature? NOYES

Is dead devisee survived by descendants?

YES Descendants substituted for deceased devisee

What if sister Angela never had children?- The gift to residuary or intestacy = would have to go to 604- 732.603(3) Words of survivorship are contrary blocking language. Because if there are

these words then T thought about where the estate would go and did NOT want it to go to the descendents of Angela. Gift goes to residuary or intestacy.

Class gift or individual fractional interest?- To my sisters, Sue and Lisa- Residue to charity- What if Sue predeceases? -> Is sister a covered devisee?

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o Yes. If Sister Sue left a descendent then 603 says that it applies to class gifts AND individual fractional interests. So we do not have to do analysis as to whether there was a class gift or an individual fractional interest. THIS WILL BE ON TEST

- What if dead Sue does not leave any descendents? - We must then determine whether the T intended the devise to be a class gift or individual

fractional interests?o Focus on Intent of Testatoro If T had other sisters and only named two then the courts likely to find this an

individual devise since she left out the other sisters.o If it is viewed as an individual gift then Dead Sue’s gift will go to residuary.

- Group mindednessRule of thumb –

- If takers are referred to only by the group label (my children) -- presumed to be a class gift

- If instead the takers are referred to by group label and by name or number (e.g., my 3 children or my children Ann, Bob, and Carol) -- gift is presumed to be a fixed fractional interest not a class gift

Dead Devisee?Alternativeater

Pg 246Lorenzo v. Medina (2010)T devises to Brother Medina and to brother-in-law Lorenzo in equal shares.If either of them do not survive me, the share of the deceased shall be given to their surviving spouse, Medina or Lorenzo respectively.Brother Medina dies and Juana Medina also predeceases the T.Since Juana was not a descendent of the T’s grandparents then the antilapse is blocked and the children of the Brother Medina do not get anything.The brother-in-law gets everything.

11/10/09

Class Gifts

- What if a class gift (to my children or brothers and one of the class members predeceased the testator?

- Does FL antilapse apply to substitute descendants of deceased class member devisee?o Yes, FL Covers deceased covered class members 732.603(3)(b) 4.a & b

- What if dead devisee not a covered devisee or left no descendants?- Class membership then matters for lapse

Intent of Testator

732.604

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(1) If a devise other than residuary fails (and anti-lapse 732.603 doesn’t substitute) devise goes to residuary

(2) If the residue is devised to 2 or more and one fails (and anti-lapse 732.603 doesn’t substitute), the other residuary devisee takes or

(3)Intestacy

Just the class group – presumed to be a classIf they name them fist then describe them – court may view this as indvidualIf they name them after the description of the group - ?????

Hypo: Testator’s Will - $100,000 to my children Al, Bob, Carol, Don- Rest and Residue to my new wife

Q: Assume when T executed the Will he had 4 children from his first marriage, Assume one child (A) predeceased the testator. Is deceased devisee a covered devisee (i.e., descendant of grandparent)?

- Yes, if you have a class gift does not matter if it was intended or not go to statute WHEN COVERED BY STATUTE

o If have dead class member o What if it had said sorority sisters: then antilapse would not apply bc not a

covered class - What if deceased devisee left no descendants?- Q: What happens to that child’s share (i.e., the $25,000)?

o If it is a class gift, the class opens and closes until the testator dies, Thus, $25,000 goes to other remaining children – when the class is covered by 603

- If not a class gift then lapse and goes to residuary (second wife)o ONLY WHEN THE CLASS IS NOT COVERED IN STATUTE THEN YOU

CAN DETERMINE WHETHER TESTATOR INTENDED TO DEVISE OR NOT

Class Gifts continued- Fla covers deceased class members § 732.603(b) 4(a)&(b)

Davis v. Arkenberg p. 229- Testatrix’s Will - Certain real and personal property to (these are step children)

o “Jr., Ralph, W.W.M., Louise, & Francis Who are the children of my late husband”

- 3 of the 5 step children predeceased testatrix- Were these deceased devisees covered devisees for anti-lapse (descendants of

grandparent of t)?o No

- What happens to a deceased step child’s share?- If it is a class gift the class opens and closes until the testatrix dies- Thus the property goes to other remaining step children

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- If not a class gift then lapse goes to residuary/intestacy- Here court said not a class (because Testatrix named them all and therefore had fractional

interests in mind)o Need to look at intent of testator – whether he wanted to group them all together o Just because they describe whom they are does not necessarily show an intent to

create a class gift.

ANALYSIS of Lapse IssueSPOT: Look to see if there is a dead devisee

1) Look to the will a. Language of survivor shipb. Contrary languagec. Alternate taker

2) See if covered deviseea. Parent or decedent of grandparent

3) If so, see if the dead devisee is part of class gift a. If the dead devisee is a member of a class

i. Fl says is fine that there is dead member

5 common types of nonprobate property1) Homestead2) Life insurance proceeds where the decedent’s estate is not the beneficiary3) Intervivos Trust4) Pension Plans5) Property with Right of Survivorship -- Property held as TBE or JT with right of

survivorship

Homestead- Does not transfer through probate – goes through the Fl constitution - FL law uses the term “homestead” for different purposes

See Note 1, Page 2571. Article VII, Section 6

a. Real estate tax exemption for homestead2. Article VII, Section 4

a. Real property 3% annual cap on increases

3. Article X, Section 4a. Protection from forced sale – protects homestead as defined in Art Xb. Restrictions on life transfers and c. Restrictions on devises of the homestead in certain instances – if you have a

minor child you cannot devise the homestead to anyone else.

Homestead Article X, Section 4

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- Protect a homeowner or the owner’s family from forced sale by certain creditors and- Safeguards the family from transfers or disinheritance under certain circumstances

o This blocks will language that deviates from constitution

Florida Const. Article X Section 4: Homestead Exemptionsa) forced sale provision

- only certain creditors b) inuring c) restrictions on lifetime transfers and devises

(a) There shall be exempt from forced sale the following property owned by a natural person:(1) – Physical limits

- No dollar cap – just acre restrictions- The only people who can do a force sale are

11/12/09- For forced sale need to figure out whether it is homestead - There are significant restrictions on devise

What constitutes homestead:1) Within the size limits (160 or ½ acre) – up to 160 acres if outside municipality and ½

acre if insidea. Only the amount within the size limits above are protected, anything exceeding is

not protected.b. No dollar cap amount, just a physical acreage capc. What if it becomes incorporated – do not lose the160d. Note also if outside municipality get to count both residence and other

improvements (including business) on the 160 acrese. Davis v. Davis p. 238f. Power of Semicolon – separated the two types of homesteads 160 acres and ½

acres – whereby the court in Davis found that the “limited to the residence” within the statute only applied to the ½ acre within the municipality.

g. Must be homestead and must be principal residence and meet occupancy but –h. Is the homestead protection limited to the part that is the principal residence?i. Section 4(a)

i. a homestead if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon

ii. OR if located within a municipality to the extent of one-half acre limited to the residence of the owner or the owners family

2) Principal resident occupancy by Florida Resident –a. Must be a resident of Florida

i. NEED to SHOW: Must have a residence in the state & actual intent to remain in the homestead (reside in Florida indefinitely)

1. If you put g-ma in nursing home and say not coming back = then lost homestead

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2. But not necessarily lost, especially if the gma is convinced she is going back home – this would show she intended to return.

b. Need to establish occupancy to get protection – occupancy of owner OR owner’s family – owner never lived in house still okay if owner’s family lived there.

i. What if empty lot1. Then get a trailer or something and get on land

c. Once occupancy established not lost unless “abandoned”i. So won’t lose if there is fire

ii. Abandonment requires intent to abandon – just bc gone for a long time does not make abandoned

iii. If there is belief and intent to come back, then strong argument that you do not lose homestead.

d. Proceeds from a voluntary sale exempt if owner proves intent to reinvest in another FL homestead within reasonable time and proceeds kept separate

3) Owned by a “natural person”a. Pre-1984 Article X, Section 4 required homestead to be held by “head of familyb. 1984 Constitutional Amendment changed head of family to “natural person”c. Not an entity such as a corporation –

i. So do not want the house held as family corpd. In a situation where it is 160 acres outside of a municipality, if there is a farm on

property which is incorporated, this is okay as long as the property is owned by a natural person it is protected by homestead.

e. Issue: What if homestead held in a revocable trust?i. Courts split on this issue

4) Real Propertya. Real property not personal property (Const allows $1k personal prop protection)b. Single family home, townhouse, condos, mobile homes, modular homesc. Cooperative? (Owner of a co-op owns stock in the company) Article X, Section 4

(a) and (c)d. What if you are a mobile home owner, on leased property?

Constitution will NOT help you. Statute 222.05 will protect from forced sale of the mobile home – but doesn’t come with other protections.

e. Co-Op & Protection from forced sale – the below case dealt with the protection from forced sale:

i. Southern Walls v. Sitwell Corp. - a cooperative apartment is protected from forced sale

f. Co-Op & Restrictions on devises – The below SUPREME CT CASE - i. In re Estate of Wartels (“a cooperative apartment may not be considered

homestead property? For the purpose of Florida law governing devise and descent.)

ii. Phillips v. Hirshon: Father devised his Key Biscayne penthouse coop to his girlfriend. At his death one of his two sons from a prior marriage was a minor. Court felt constrained by Estate of Wartels to hold that coop was not real property for purposes of homestead descent

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Florida Constitution Article X- What type of creditors are NOT barred from forced sale? - Super Creditors (only these 3)

o 1) Federal, state, local taxes & assessments (taxes and assessments) IRS Assessments for condos or Home Owners Associations

o 2) Mortgage lender or home equity lender (for purchase, improvements, repairs)o 3) Mechanics lien holders (field or other labor – performed ON THE REALTY)

The pool builder - Who benefits from the exemption from forced sale after homestead owner’s death: (b)

o These exemption shall carry over to the surviving spouse or heirs of the owner o What if homestead go to owners best friend – then can force a sale (bc not heir)

Protection from forced sale inures to spouse or heirs- 732.102 and 732.103- Amended 4 (a) “natural person” and 4 (b) “heirs” allows exemption to inure whether

decedent had dependant heirs or not at time of his death

Snyder v. Davis p. 242- Betty Snyder devised to granddaughter Kelli even though son alive- Did exemption from forced sale inure?- Fla Supreme Court Held- RULE: exemption inures to any class of persons in intestacy statute (732.103)

In Moss v. Estate of Moss – Court applied Snyder and held that the deceased husband’s relatives are included within

the class of heirs to whom the homestead protection inures because Fla. Statute 732.103(5) includes as heirs “kindred of the last deceased spouse of the decedent...” Pg 269 in book.

Hypo: – Assume Decedent had owned homestead- Facts: D died single and childless. D had for years lived with his girlfriend Lola. D’s

will devised his homestead to “my companion, Lola, in fee simple.”

Q: What if D’s last illness left him with numerous debts and those creditors wanted to force a sale of the house to pay D’s debts? Did D’s protection form forced sale “inure” to Lola”

- NO they can force sale

Q: Is Lola D’s spouse or heir -- NO

Hypo Variation – Assume Decedent had owned homestead- Facts: D died leaving behind his wife.

Q. What if D’s last illness left him with numerous debts and those creditors wanted to force a sale of the house to pay D’s debts? – NO

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Chames v. De Mayo (2007) DeMayo entered into a retainer agreement with a lawyer that waived his right to claim

homestead if lawyer imposed liens for fees Was this a proper alienation under 4(c)? No – the court held that this is not proper

alienation (waiver) The owner under 4(c) (joined by spouse if married) may alienate “by mortgage, sale, or

gift” – however in this case the court found that this agreement was not the equivalent of a mortgage proceeding because the process of signing a mortgage would have provided DeMayo with enough knowledge as to the extent of what he was doing whereas this agreement was not sufficient to be viewed as the equivalent of entering into a mortgage.

Court said you have to look at the FL constitution to see what can be done with a homestead.

Was it a proper waiver under the constitution? No – because the only waivers that the court allows for homestead are spouse’s waiver with pre-nuptial agreements.)

This is because not only is the person owning protected by the spouse, minor children, and the State (because the state doesn’t have to provide for the spouse and minor children left on the street) are protected by the homestead protection.

11/17/09

Restraint on Alienation – 4(c)- Brought back into decedent’s estate- Married spouse owning title alone can’t alienate homestead without the other spouse

joining in the conveyanceo Does not apply to minor child

- Applies ONLY to marriage - If the owner is not married can sell or mortgage or give away

Hypo- H, a widower, owns fee simple title to homestead- H marries W- Can H sell house without W’s consent?

o NO, H can’t sell his house without W’s consent

Restrictions on Devise of homestead – 4(c)- FL law also restricts a person’s right to devise homestead- However, he can sell it, give it away, or mortgage it as long as spouse also agrees to this.- Constitution Article X, Sec 4(c) and 732.4015(1)

o So if citing authority need to cite both - Can’t devise if survived by spouse or minor child, except can devise to the spouse if there

is no minor child – the devise would be invalid if not to spouse or minor children.- Rule #1 If individual survived by minor – can’t devise at all - Rule #2 If individual not survived by minor but is survived by spouse, can only devise to

that spouse

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- If owner dies intestate or if testator attempts invalid devise of homestead the devise is not enforced

o Homestead would descend by operation of law =2 Statutes 732.4015, 401732.401: Descent of homestead: applies -- Intestacy unless surviving spouse and lineal descendants (surviving spouse gets LE and lineal descendants get VR)

ORSpouse can choose to get ½ as a TIC; other ½ to descendants, per stirpes. Must make choice within 6 months.

- COURT HAS TO FOLLOW THE CONSTITUTION AND THE STATUTE –

In re Estate of Finch (p. 240) – Fla supreme court case - John Finch survived by spouse and two adult daughters- His Will left homestead to his wife for life with a vested remainder to one of his

daughters Was that a valid devise of homestead?

- No – bc did not devise it all to the spouse (Rule #2) – The only devise he could do since he did not have minors, was to the spouse. If the devise is not ACCEPTED BY THE CONSTITUTION then look to the statute to determine how it will be devised (732.401)

- Since there was an invalid devise, this homestead would descend by operation of law = 732.401

- So, descends pursuant to 732.401o Life estate to wife, vested remainder in the 2 daughters

Under new 401(2) the wife could have elected ½ as TIC and 2 daughters would have other ½. – This law was not in effect at this time.

City National Bank v. Tescher p. 241- Owner survived by adult children and by a husband who had waived homestead rights in

prenuptialWas owner allowed to devise the homestead?

- Rule #1 If survived by minor – can’t devise: does NOT apply here - Rule #2 If not survived by minor but survived by spouse, can only devise to that spouse- Here devise valid even though husband alive, because Husband waived rights in

prenuptial so deemed to have predeceased (presumed dead)

Tenancy by the entirety (TBE)Passes by operation of law because it is survivorship property (has own transfer system)Article X, Section4

- Protection from forced sale – YesRestrictions on devises

- No - 732.401(5)- TBE property goes to surviving spouse by operation of law because it is TBE property- Surviving spouse takes TBE property automatically by right of survivorship

Exempt Property- Fla. Constitution Article X. Section 4(a)(2) (p. 234) exempts from forced sale

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Section 1000 personal property732.402 also provides protection against creditors from certain types of tangible personal property

What property is “Exempt Property” under 732.402(2)- Household furnishings & appliances up to $20,000 net value at the time of death (used

refrigerator not worth as much as if it was brand new.)- 2 cars (motor vehicles) in decedent’s name used by decedent or his family

o Note no $ limit on the carso But regular personal use (NOT BUSINESS TRUCK) by immediate family

members and 15k lb weight- All 529 college plans- Death benefits for child dependents of teacher killed on duty

o Barry Grunow Act

Who gets exempt property?- 732.402(1)

o Surviving spouse – if there is a SS then SS gets it all and children get nothing.o Or, if no surviving spouse (ONLY IF NO S-SPOUSE), the decedent’s children

(NOT DECENDENTS, ONLY CHILDREN IF NO S-SPOUSE).- 732.402(3) – not exempt to the extent of security interest in the property (e.g., car loan) –

if there is a loan outstanding on the car, the lender can take away car.- 732.402(5) – not exempt property if decedent had specifically or demonstratively

devised the propertyo e.g., my car to my sister – not exempt property – (if creditors there is problem)o note if specifically devised to spouse (or to children if no spouse) the specific

devisee could ask the court to declare it exempt – but need to ask - 732.402(6) – move fast – have only 4 months

Family Allowance- 732.403 – gives you money early if court is taking a lot of time - Who gets family allowance?

o Surviving spouse and lineal heirs decedent was supporting (or obligated to support)

o Note: not limited to lineal descendants So if the decedent was supporting parents would apply to them

- How much: Court determines but can’t exceed $18,000- Introduction to Elective Share- First distinguish pretermitted spouse

Homestead Chart

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Facts Can ABC attach homestead while H is alive?

Can H alienate the homestead?

What happens if H dies intestate?

Can H freely devise the homestead?

Can ABC attach the homestead H devises?

7. Single, no children

No Yes No Yes No

8. Spouse, no children

No No No No No

9. Spouse and minor child

No No No No

10. Spouse and adult child

No No No

Facts Can ABC attach homestead while H is alive?

Can H alienate the homestead?

What happens if H dies intestate?

Can H freely devise the homestead?

Can ABC attach the homestead H devises?

7. Single, no children

no.  H is a natural person and ABC is not one of the 3 supercreditors in Art X, section 4a

Yes.  H doesn’t have a spouse. Restriction on alienation is Art X Sec 4c only applies if married

732.401(1) if homestead not devised as permitted, and H not survived by a spouse and lineal descendants, it descends under the laws of intestacy.  Here no devise and no spouse so it would descend to H heirs under 732.103

Yes.  No spouse or minor child4c and 732.4015 restrictions don’t apply here 

 

8. Spouse, no children

No.  H is a natural person and ABC is not one of the 3 supercreditors in Art X, section 4a

would need spouses consent.  Cant do it alone. 

732.401(1)Here no lineal decendants so LE provisions don’t apply, go to 732.102 (all to W) 

W gets it.   

9. Spouse and minor child

No (same as above)

needs her consent (could tranx as TBE)

cant devise – has minor child (Rule 1)732.401 – W gets LE and minor child gets VR 

now cant devise at all – not even to W; section 4c and 732.4015 absolute restrictions on devise apply b/c H survived by a minor child

 

10. Spouse and adult child

         

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Pretermitted Spouse StatutesBefore BetweenWill Will & AfterExecution Death Death

Will executed Testator dies

Pretermitted Spouse only if marriage after Will executiono Section 732.301 -- surviving spouse can claim an intestate share of decedent’s probate property (as a pretermitted spouse)

unless one of three exceptions applies: (1) Prenuptial or postnuptial agreement; (2) The spouse is provided for in the will; or (3) The will disclose an intention not make provision for the spouse.

Hypo: Late-in-life Second marriage. Second spouse had substantial assets. T leaves his will unchanged assuming all of T’s estate will pass under the will to his children from the prior marriage.

o 732.301 – Pretermitted spouseo 732.102 – Spouse receives ½ of estate, children from previous marriage receive ½

11/19/09

Spousal Elective Shares

Partnership Theory of Marriage- Recognize each spouse’s contribution to the economic success of the marriage- Separate-property (English common law states) and community-property states (Spanish

and French settlers)o FL is separate property estate o Community property system – each spouse by virtue of the marriage each gets

half – each spouse owns together the earned property obtained during the marriage

Divies up property EARNED DURING MARRIAGE Typically things that are inherited during the marriage are excluded

- Even separate property states use “partnership theory” for divorceo each spouse owns their own separate property o but for divorce does more of a 50/50 basis (equitable distribution)

- Elective share statutes apply to implement a form of partnership theory to prevent intentional disinheritance upon death

o They are saying the decedent has acquired what they have bc of contributions to the marriage

o Do not need elective share statutes in partnership theory states

UPC Spousal Elective Share – gives smaller amount for shorter marriages and it increases overtime.UPC is 50% of the Elective Estate

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Some elective share statutes allow election against probate estate – this is only in some states, FL use to be this way.

- FL pre-1999o Spouse entitled to 30% of Probate Estate –o Non-probate assets were not subject to electiono e.g., Property the decedent held as a tenant with right of survivorship, life

insurance benefits, retirement accounts, property held in an inter vivos trust escaped inclusion – so if the state uses Probate Estate, a spouse can disinherit using one of these avenues when State is Probate Estate Elective State.

- Now FL uses “Elective Estate” not “Probate Estate”- Note: still not partnership theory of marriage because no sliding scale where % based on

years of marriage- How much is FL Elective Share %- FL 732.2065- 30% of “Elective Estate”

o Flat 30% regardless of length of marriage (short or longer marriage).

STOPPED HERE

FORMULAAdd up all of the Elective Estate, multiply that number by 30% = Spousal Elective ShareValue all probate assets – all are part of the elective estate, regardless of who gets it pursuant to will.Value all the non-probate assets F.S. 732.2035(1)-(9)

EE x 30% = Spousal Elective ShareEE = probate and non-probate assets defined in 732.2035(1)-(9)

HYPO: if you get married young and husband has a lot of assets wife does not have any, they are married for a year – he doesn’t leave her a lot in the will.

- Fl she gets 30% of estate - And if it was a 25 year marriage would only get 30%- UPC has sliding scale – longer the marriage more you get – once you hit 20 hits 50 and

does not go up

Assets Included in Elective Estate:- The elective estate of the decedent is a broad concept- It encompasses probate and a variety of nonprobate assets

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- FS 732.2035(1)-(9)The elective estate is a broad concept – includes:

(1) probate estate - Will or Intestacy

(2) accounts or securities in POD accounts, and decedent’s interest in accounts held in right of survivorship;

Ex: H’s bank account provides that it is Payable on Death to his daughter. Since H could have up till his death withdrawn entire amount, the entire amount in the account is in the elective estate

(3) other property held in right of survivorship- Ex: H and his 2 brothers own investment land in joint tenancy with right of

survivorship. H dies, survived by his 2 brothers and his W. Because there were three co-tenants, one-third of the value of the land at H’s death is included in the elective estate. BECAUSE WE LOOK AT WHAT HE HAD JUST BEFORE HE DIED. We are not giving it to the W we are just using it to get a number to determine her 30%.

- Ex: H and W owned a vacation house as TBE. H’s ½ interest in the TBE is included in the elective estate – it doesnt matter that the W is getting it later, we look at what the deceased spouse owned at time of marriage.

(4) property in a revocable trust – don’t need to know in detail bc will learn in trusts- Ex: H creates a revocable trust, providing for the income to go to H for life,

remainder in fee to H’s child, C. Subsequently H dies without having revoked the trust, survived by W and C. The entire value of that revocable trust at H’s death is included in the elective estate

- if husband has right to revoke do not care who the other beneficiaries are -Since he could have revoked it while he was alive, this is considered what he owned at time of his death.

(5) property held in a discretionary trust for settlor (or trust where decedent had right to income or principal)

- Ex: If principal of irrevocable trust could be distributed to or for the benefit of the decedent (deceased spouse), the trust assets are included in the elective share

(6) cash surrender value of insurance policies on the decedent’s life – not the face amount on the policy. So if it is a “term policy” it is zero. Only cash surrender value is included in elective estate.

- Ex 3 p. 260: George purchased a whole life insurance policy in 2002. Immediately before his death, the policy had a cash surrender value of $2,000. The policy proceeds payable at his death were $100,000. Only $2,000 is included in the elective estate.

Only cash surrender value included in decedent’s elective estate

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o NOT the value of the policy Ex. Face amount of whole life policy is $100,000

o Cash surrender of $2,000 How much is included in elective estate?

o Only $2,000 Term policy – no cash surrender value

So if term policy is 100k then survivng spouse not entitled anything under this policy

(7) death benefits payable under qualified and nonqualified retirement plans

(8) certain transfers with 1 year of the decedent’s death

(9) property transferred in satisfaction of the elective share

It is the fair market value at time of debt.

EXCLUDED FROM ELECTIVE ESTATE

Assets Excluded from the Elective Estate 732.2045(1)(a)-(i) nine exclusions1. Transfers that were irrevocable before 10/1/99 and irrevocable transfers made after that

date but before the decedent married the surviving spouse2. Transfers if the decedent received adequate consideration3. Transfers to which the spouse consented in writing (signing for gift tax return is not

consent of spouse)4. Proceeds of an insurance policy covering the decedent’s life to the extent the proceeds

exceed the cash surrender value5. Policy on the decedent’s life if it is maintained pursuant to a court order

a. Usually this happens in cases of divorce (to support child)6. Decedent’s half of certain property that is treated as community property7. Property held in a special needs trust at the decedent’s death8. Property that is included in the decedent’s federal gross estate solely because the

decedent held a general power of appointment over the property.9. Property that is the decedent’s homestead (there is protection from the surviving

spouse through the homestead statute so she doesnt get to include this in the elective estate.)

Valuation

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732.2055(5)- Property included in Elective Estate at its FMV minus (claims, mortgages, liens, and

security interests)- Claim defined in 731.201(4)

o Don’t get to subtract out expenses of administration or estate taxeso Can subtract real claims against the decedent

So if decedent had a vacation home in her name and it is worth 300,000 but there is a mortgage on it for 200k then 100,000k is what is added to the elective estate.Liabilities of the decedent and funeral expenses are subtracted from the elective estate.

Three Steps1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045 and

subtract claims of decedent, funeral costs of decedent, mortgages, liens, and security interest)

2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate (i.e., 30% of the amount from step 1)

a. Take # from 1 and multiply by 30%3. Satisfy the Elective Share Amount

a. Property passing to Spouse is applied first (the below will offset her amount entitled to under elective estate 732.2075(1)

i. Anything in decedent’s Will to surviving spouse or TBE property ii. Life insurance policy payable to spouse

iii. Retirement benefits payable to spouseiv. Value of property spouse getting by right of survivorship otherwise

b. Unsatisfied balance abate under 732.2075(2)i. This tells you who loses to pay off the spouse

1. Anything in probate estate or revocable trust –goes 1st

Election Hypo : H’s will leaves his wife 20K and his son C from first marriage gets the residue. Wife wants to exercise her right to the elective estate.

- H dies with probate assets (some stocks in his own name) of $230,000 and has $30,000 of outstanding claims.

- H and his sister hold title to land worth $300,000 in JT w/ rights of survivorship - H and W own title to vacation home worth $200,000 as TBE- H created a revocable trust for the benefit of H for life, remainder to C (H’s child from a

prior marriage). The value of the trust at H’s death is $500,000

Step #1 determine Elective estate by adding all H’s assets less claims

Probate Assets $200,000 ($230,000-30,000 claims)

JT Land $100,000 (300,000-200,000 2 sisters %)

TBE land $100,000 (200,000-100,000 her % of TB is subtracted

Revocable Trust $500,000 (the entire 500k applies because it is revocable)

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$900,000 = elective estate

Step #2 multiply by 30% to get elective share amount $900,000 x 30% = $270,000- Determine how much she gets

Step #3 Satisfy $270,000 first with property going to W (20k from will and 100k from TBE = $120,000)

- 20K from the will and 100K of the TBE – 270,000-120,000 = 150K balance - 732.2075 – If spouse entitled to more then go first to Class 1 = probate AND revocable

trust PROPORTIONATELY then if need be, go to next 2 classes. - 150K is going to come out of probate assets and trust – probate assets worth 200k and

trust work 500k so 75k from each - C will have a trust worth

Election Hypo Revised: same as above but - H owned a term life insurance policy on his life with a face amount of 500K payable to C

(H’s child from previous marriage) No cash surrender value

Step #1 determine Elective estate by adding all H’s assets less claims

$200,000 – Assets minus claims

$100,000 – house with sisters

$100,000 – TBE property

$0 - TERM LIFE INSURANCE POLICY

$400,000

Step #2 multiply by 30% to get elective share amount $400,000 x 30% = $120,000

Step #3 does not get anymore (She gets $20,000 from Will and the $100,000 from the TBE property = $120,000)

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SO BY USING THE TERM LIFE INSURANCE POLICY WILL PREVENT WIFE FROM ELECTIVE ESTATE ENTITLEMENT.

What is the elective estate? It is what the decedent actually own before he died. We determine this by looking to the statute 732.2035 to determine what is considered within the elective estate.Pg 299 Hypo #3

Al DiedSurvived by his mother LHis wife WTwo daughters S and R5 grandchildren11 great-grandchildren andTwo Great-great grandchildren

He owns:Stocks and bonds worth $500k – held JT w/ROS to LWhole Life Ins Policy – 1mil death beenfits to his grandchildren (surrender value 300kInvestment land in Miami worth 1milInv land in Oregon worth 1milSavings acct worth 50k (registered to Al, POD W)Al and W lived in an apartmentAll the furniture belonged to W – inherited from her parents

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Al’s will devised the Miami land to W for life, remainder to S and RBased on her age at A;’s death, Susannah’s life estate was worth 200kAl’s will devised all his other property to his G-grandchildren

If Susannah decides to take her elective share, to what amount is she entitled?

From which assets will the funds to satisfy her share be taken?

Step One:Go to 732.2305Probate Property 1st = 1 mil for Miami house & 1 mil for Oregon property = Account POD = $250,000Savings Account = 50,000Cash surrender value of Life Insurance Policy = $300k

1,000,0001,000,000250,000300,00050,0002,600,000 = estate to mulitply the 30%

$780,000

Step Two: 732.2075(1) subtract what wife gets per willWe must subtract what the W gets per the will from the elective estate$780,000 – ($200,000 + 50,000) = $530,000Estate – What W gets per the will (LE from Will and POD account) = Wife entitled to $530,000 balance.

Step Three: Figure out how to statisfy the rest = 732.2075(2) tells us to next subtract from the decedents probate estate and revocable trusts.

ASK PROF WHO PAYS – JT ACCOUNT?

TRIGGER IN FACTS – TRAGEDY HAPPENS MULTIPLE FAMILY MEMBERS DIESurvivorship Advancement SlayerAdemption by SatisfactionWaiver, Agreements regarding Succession

What happens to property when common disaster or accident - TRIGGERSo Intestate (or Testator) and beneficiary both dieo TBE and both spouses dieo JT w/ right of survivorship both/all die

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o Insured and named beneficiary both dieo FL 732.601o If “insufficient evidence” as to order of death assume decedent (e.g., property

holder/insured/testator) survived his beneficiary (i.e., assume beneficiary died first)

o UPC State – Under UPC a decedent is deemed to have survived the beneficiary UNLESS the proponent stating that beneficiary survived decedent can prove WITH CLEAR AND CONVINCING EVIDENCE that the beneficiary survived the deceased for 120 hours (5 days).

o FL 731.103 – Evidence as to death or status – Death certificate is prima facie evidence of death

o This applies if there is a will, if T dies intestate, tenancy property, TBE, and insurance

o Rimmer v. Telsa p. 307 George (H)-Mildred (W) H and W owned their house TBE and other property as JT w/ Rights of

survivorship If insufficient evidence that they died other than simultaneously,

732.601(3) – if we don’t know then we will just do half and half (or if there are 3 JTs and all 3 died then 1/3 to each decedents family) therefore H’s ½ goes to H’s heirs and W’s ½ goes to W’s heirs

If evidence shows W survived, W got H’s 1/2 at H’s Death, so W’s heirs get 100% - Standard TBE distribution.

What evidence was there here? The doctor who arrived at the scene stated that W died 15 minutes after H

but the Death Certificate said “approx 9:00 a.m.” for both. The court found that the doctor’s testimony was sufficient to rebut the

death certificate’s time of death.o Length of Survivorship p. 277

732.601 need to find sufficient evidence to conclude that the deaths were not simultaneous (Estate of Shine – not just any evidence, must be more than insufficient evidence).

But – no required period of time (recall 15 minutes in Rimmer v. Telsa) Contrast UPC requires survivorship by 120 hours (5 days)

o Question 6 p. 279 H & W own property TBE and each have some property in their own

names. Each have children from prior relationships.Wife’s Will Husband’s WillMy property to My property tomy husband if he my wife if shesurvives me, if survives me, ifnot to my children not to my children

If H & W die in common disaster and there is insufficient evidence as to order of death who receives the TBE and other property? Then ½ to H’s heirs and ½ to W’s heirs

o Killer (Slayer) Statute p. 279

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732.802(1) “unlawfully and intentionally” kills or procures Estate of decedent passes as if the killer had predeceased Applies for both testate and intestate situations.

732.802(5) Murder conviction is conclusive In absence of murder conviction, court may determine by greater

weight of the evidence if killing unlawful and intentionalo Estate of Benson p. 285

Margaret died Steven killed sister Carol and brother Scott

Margaret Benson

Carol Scott Steven

GC1 GC2o Congelton v. Sansom p. 280

Husband stangled his wife Criminal trial – found not guilty by reason of insanity Court analyzed 732.802(5)

In absence of murder conviction, court may determine by greater weight of the evidence that killing was unlawful and intentional

o Advancement p. 293 Common law – any lifetime gift was presumed to be an advancement Now Statutory – typically presumption is the other way (i.e., gift

presumed not advancement)o 733.806

If person dies intestate Property decedent gave during lifetime to an heir is an advancement if

Declared in contemporaneous writing by decedent or Acknowledged in writing by the heir

What if recipient predeceases intestate donor?o Advancement Hypo: Mom (a widow) dies intestate. M has estate worth

$50,000. M had 3 sons. One son, S1, received an advancement of $10,000 (assume writing requirement met).

Mom

S1 S2 S3 $10,000 advance is added to the $50,000 Hypothetical Total of $60,000 divided by 3 S2 and S3 get $20,000 S1 already has $10,000 so only gets additional $10,000

o Advancement Hypo -- Variation: M dies intestate. M has estate worth $50,000. M had 3 sons. One son, S1, received an advancement of $10,000 (assume writing requirement met). Assume S1 predeceased, leaving two grandchildren.

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If silent on S1 predeceasing, pretend no advancement and standard intestacy applies.

S2 and S3 would get 1/3 each, and GC1 and GC2 would split the remaining 1/3.

o Hypo re: probate and nonprobate assetsW

S1 D1 W dies intestate leaving S1 and D1 W and D1 owned real property worth $100,000 as JT w/ Rights of

Survivorship W owned a $200,000 life insurance policy on her life and had named D1

the beneficiary W separately owned stocks worth $300,000. How will W’s property be distributed? S1 gets $150,000 D1 gets $450,000 ($100,000 + $200,000 + $150,000)

731.109 Debts owed by heir to intestateo If loan not paid in full, outstanding debt is debited from the heir’s inheritances,

BUT…o If debtor/heir predeceased intestate, debt not charged.

12/02/2008

Ademption by Satisfaction, Disclaimers, Waivers, Agreements Concerning Succession, non-residents, and Exam Instructions and Review

Ademption by Satisfaction (Property is deemed already satisfied by a gift)o FL 732.609o Lifetime gift by testator to a devisee only reduces a devise if

Have direct written evidence of intent that lifetime gift reduces the devise Written in Will; Contemporaneous writing by testator, or Acknowledged in writing by devisee/donee

o Not to be confused with Ademption by Extinction (property devised later gone)o Similar to Advancement for Intestacy (733.806)

Disclaimerso Reject propertyo 739.101-107o Often for federal estate tax reasonso Who takes disclaimed property?o 739.201(2) and (3)

If instrument provides for alternate taker, alternate taker takes Otherwise, treat disclaimant as having died

o Limits on disclaiming when in financial problems Waivers

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o FL 732.702o Formalities?o Written, signed in presence of 2 witnesseso Note: 732.702(1)

Waiver of “all rights” waives (everything): Right to elective share, intestate share, pretermitted share, homestead,

exempt property, and family allowanceo If prenuptial agreement, waiving spouse not entitled to fair disclosure 732.702(2)

Agreements Concerning Succession (e.g., to make will, not make will, not revoke)o Sometimes made with pre- or post-nuptial agreementso Sometimes for caretakers

If you care for me in my old age, I will provide for you in my willo 732.701o In writing and signed by the agreeing party in the presence of two witnesseso Note: 732.701(2)

Nonresident administrationo Conflicts of laws ruleo FL Stat. 732.502(2)

Will executed by nonresident valid in FL if valid where executed Unless

Holograph (i.e., not attested or nuncupative) Nonresident administration -- Ancillary administration

o Ancillary administration is administration in a state or country other than where decedent was domiciled

o Real property located somewhere other than where decedent died domiciled is subject to ancillary administration

If FL domiciliary owns real property in another state (e.g., North Carolina) need ancillary jurisdiction

If other state resident (e.g., North Carolina domiciliary owns real property in FL), need FL ancillary jurisdiction

o Can aliens (non-citizens) inherit? 732.1101 – yes But see Attorney General Opinion p. 7 If beneficiary is a Cuban national or resident of Cuba amount goes to

blocked account***No UPC, ONLY FL***MC Questions

1. Testator’s validly executed will “My 100 shares of ABC Corp stock to my friend A and Rest and Residue of my estate to the Red Cross.” Assume that after the will was executed ABC Corp merged with XYZ Corp and the merged company exchanged all shares of ABC Corp into XYZ Corp. shares. At Testator’s death testator owned 100 shares of XYZ Corp. Which of the following is the most likely result for Albert?

(d) Albert would be entitled to the 100 shares of XYZ Corp shares because the change in the shares was initiated by entity 732.605(1)(c)

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2. In 200 F and W have a child P. In 2001 W dies, F marries B in 2003. In 2004, B adopted P. In 2007, W’s mother, Granny, a widow, died intestate. W had been one of 4 children of Granny’s. Granny’s other children survived Granny. Granny’s net distributable assets are worth $400,000. How much can P inherit from Granny under FL law.

(a) $100,000New -- Election Hypo

H’s Will leaves his wife $20,000 and his son C, the residue H dies with probate assets (some stocks in his own name) of $220,000 and has $20,000 of

outstanding claims H and his sister hold title to land worth $200,000 in JT w/ rights of survivorship H and W own title to vacation home worth $200,000 as TBE H created a revocable trust for the benefit of H for life, remainder to C (H’s child from a

prior marriage). The value of the trust at H’s death is $500,000 Three Steps

o 1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045 and subtract claims, mortgages)

o 2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate (i.e., 30% of the amount from step 1)

o 3. Satisfy the Elective Share Amount Property passing to Spouse is applied first 732.2075(1)

Anything in decedent’s Will to surviving spouse Life insurance policy payable to spouse Retirement benefits payable to spouse Value of property spouse getting by right of survivorship otherwise

Unsatisfied balance abate under 732.2075(2)*Subtract out claims

Step 1$200,000

$100,000

$100,000

$500,000$900,000

Step 2 – $900,000 x 30% = $270,000Step 3 – Satisfy $270,000 first with property going to W ($120,000 – the $20,000 from H’s Will and the $100,000of H’s share of the TBE property) so have $150,000 balance

New -- Election Hypo Variation H’s Will leaves his wife $20,000 and his son C, the residue H dies with probate assets (some stocks in his own name) of $220,000 and has $20,000 of

outstanding claims H and his sister hold title to land worth $200,000 in JT w/ rights of survivorship H and W own title to vacation home worth $200,000 as TBE

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H owned a term life insurance policy on his life with a face amount of $500,000 payable to C (H’s child from a prior marriage). No cash surrender value.

Three Stepso 1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045

and subtract claims, mortgages)o 2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate

(i.e., 30% of the amount from step 1)o 3. Satisfy the Elective Share Amount

Property passing to Spouse is applied first 732.2075(1) Anything in decedent’s Will to surviving spouse Life insurance policy payable to spouse Retirement benefits payable to spouse Value of property spouse getting by right of survivorship otherwise

Unsatisfied balance abate under 732.2075(2)*Subtract out claims

Step 1$200,000

$100,000

$100,000

$0$400,000

Step 2 – $400,000 x 30% = $120,000Step 3 – Satisfy $120,000 first with property going to W ($120,000 – the $20,000 from H’s Will and the $100,000of H’s share of the TBE property) so have $0 balance

2 Basic Rules for All Distribution Systemso Rule #1 – A descendants cannot take if he/she has a living ancestor who is an

eligible taker e.g., Maternal GM dies and mom alive, GC is not an eligible taker under

any intestacy statuteo Rule #2 – Disregard anyone who died without issue

e.g., Mom had 3 kids but one predeceased leaving no children. Two living children each get ½

o Half-bloods (1/2 as much as whole blood)o Adoption cuts off biological (becomes part of adopting family), w/ exceptionso Who is last taker before escheat? Kindred of last deceased spouse.

Qualifications for Personal Repo 733. 302 – resident of FL at time of death of decedent and not disqualified

Priority of Appointment (Testate and Intestate) FL Presence Requirements – line of vision What must witness actually witness

o 732.502(1)(b)

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Mental elements & Formalitieso Testamentary Capacity

Testator’s ability to understand in a general way (1) The nature and extent of his property (2) Natural objects of his bounty (3) Practical effect of will as executed (i.e., the disposition he wishes to

make of his estate, and the act of making a will) Carpenter and Hack v. James – Undue Influence

o Presumption of Undue Influence 1. Influencer is a Substantial Beneficiary 2. Was in a Confidential Relationship with testator and 3. Actively Procured the will

Factors for Active Procuremento 1. Beneficiary present at executiono 2. Beneficiary present when will discussedo 3. Beneficiary recommending attorneyo 4. Beneficiary’s knowledge of contents of willo 5. Beneficiary giving attorney instructionso 6. Beneficiary securing witnesseso 7. Beneficiary storing the will

Revocationo Subsequent valid instrument 732.505o Physical act 732.506o Recall

Codicils Republication Anti-revival Incorporation by reference Integration Effect of divorce Separate writing for tangible property DRR

Anti-revival In case of new will

o Problems created by time gapo Homestead

Rule #1 Rule #2

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See Estate of Benson Pg 315 – Killer Not Entitled to Recieve property or other benefits by reason of victim’s death.

The D was convicted of murder.What effect does 802 have:

Margret Benson – Killed Scott Benson – Killed Steven – Murderer – Convicted – Deemed Dead per 802 Steven kills his brother and his mom Margaret Steven has 2 children Mother Margaret leaves in the will everything to her 3 sons equally. No trial needed to determine if Steven killed because 802 says if a murder conviction,

this is conclusive for purposes of this statute. This dispute is about Carol (the sister) stating that since Steven killed mom then his

children should be prevented from inheriting. In Steven’s inheritance, since he is predeceased, we have to do a lapse/anti-lapse analysis.

Since Steven falls within the persons who are covered under anti-lapse and he has descendents so anti-lapse allows his descendents to take.

Now we must determine if 802 blocks – 802 treats the murder as predeceased, not that he never existed, so the act of the father

will not block the children of the killer from inheriting.

Congelton v. Sanson – Spg???Pg 312 – The husband who strangled his wife.In the criminal trial he was found not guilty by reason of insanityThe court looked to Fla Stat 802 and interpreted it that the “widower” was entitled to a hearing or trial.The evidence presented at the hearing from Officer Dennis that the husband said “I remeber choking her”.The court held that insanity is not enough to avoid unlawful & intentional murder, even though he was found insane in the crim proceeding.

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LoCascio v. Sharpe pg 317Convicted of 1st Degree Murder – Conclusive, no probate hearing/trial needed.The issue was:What happens with property held by JT or TBE. 802 converts JT and TBE into a TIC and the killer has no right of survivorship. He does nto benefit from the right of survivorship. 802(2) is a severance statute, not a forfeiture statute. You don’t lose your own property (you get to keep your portion of the property you own), you just don’t inherit from the person you killed.

Disclaimers – probably not on examYou can reject property – no acceptance allowed.i.e. instead of giving it to me, give it to my children OR if the property is upside down.Often for federal estate tax reasonsWho takes disclaimed property?739.201(2) and (3)If instrument provides for alternate taker, alternate taker takes.Can make a trust the alternate taker – i.e. “To my wife, but if she disclaims all or part, to ABC trust set up for my children”If T had not dealt with disclaimed property in the will, the disclaimant is treated as having diedLimits on disclaiming when in financial problems – can’t disclaim to avoid creditors.Drye v. US pg 321 – can’t avoid a federal tax lien by disclaiming.

Advancement Pg 328USE TO BE:Common Law - any lifetime gift was presumed to be an advancement.NOW IT IS STATUTORYTypically presumption is the other way (i.e. gift presumed not an advancement.)

HypoMom w widow dies intestate. M has probate estate worth $60,000. M survived by 3 sons. One son S1 received an advancement of $15,000 (assume writing requrement met). How is M’s estate distributed?The value of the gift is brought into a fake hodge pot:Value of $15000 advance is added to the $60,000 left at death = $75,000Divided $75,000 by 3 (3 sons) = $25,000 each sonFirst pay the heirs who did not get an advance ment the same amount had the money (the advancment) of still been there: S2 and S3 gets $25k eachS1 gets 10 because he already got $15,000 advancement

CHANGE OF HYPO ABOVE:

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Now the one who got the advancement S1 predeceased leaving two children (Mom’s GC)The only way the grandchildren are affected is if the writing says that the advancement also applies to the descendents of S1.If it is silent on this issue then we ignore the advancement and pretend it never happened and S1 and S2 get 20k and the two grandchildren (S1’s children) get $10k each.

ADEMPTION BY SATISFACTION – Differs from ABEFla Stat 732.609You already got your inheritance early.It is a lifetime gift by a testate person to a decisee only reduces if:Direct written evidence of intent that the lifetime gift reduces the deviceWritten in WillContemporaneous writing b y testator orAcknowledge in writing by devisee/doneeSimilar to Advancement for Intestacy – 733.806

Class notes 12/1/11               Stat 732.109- Debts to decedent               * Loan from decedent who died intestate        * If loan not paid in full, at decedent's death, outstanding debt is deducted from heir's inheritance.        * Basically, the debt is offset.        * BUT        * If the debtor dies before decedent, the debt is ignored                      Waivers 732.702               Prenups! You can waive your right to everything.        * Waiver of "all rights" waives:        * Right to elective share, intestate share, pretermitted spouse, homestead, exempt prop, and family allowance        * There must be 2 witnesses, must have formalities, per legislature.        * (2) no disclosure shall be required before marriage, for purposes of debt, for the prenup. but you should do full financial disclosure.        * After the marriage, you can still do a waiver, but there must be full disclosure, of assets and debt.               Agreements concerning accession- 723.701               An agreement not to make will, not make will, not revoke.        * Sometimes for caretakers

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                * If you care for me in my old age, I will provide for you in my will.                * Oral agreement no good. Must be in writing with 2 witnesses.        * Ways around would to put everything into revocable trust.        * Or put into non-probate assets        * Or, spend all the money!        * (2)- execution of joint wills is not contract under the statute. MUST be separate wills.

Exam reviewGO TO TWEN FOR EXAM INSTRUCTIONS

Advancement hypo:

Mom dies intestate. She has probate estate worth 90K.Sh eis survived by 2 sons.Son 1 got adv of 10K.

Value of 10K added to 90KSo thwen 100kDivide by 2.Son 1 gets 40K.

Hypy 2- same as above, but no writing.So, 90k divided by 2.Each gets 45k.

If no writing, ignore gift.

***Homestead-* Geog limits, residency* Protection fro forc ed sale* Which credits could force a sale? Taxes and Assessment Creditors, Liens for maintenance and repairs, and construction on property, Mortgages and Loans secured by the property.* When does protection from forced sale inure? It insures upon the death of the owner of the property.* Lifetime alienation restrictions? If have a minor child then cannot devise to anyone. If married and no minor child then can devise the entire property to your spouse. If you attempt an invalid devise, the devise will fail and spouse will get a life estate and your descendents with get a vested remainder in fee simple. Alternatively, the spouse can elect to take ½ interest in TIC and your descendents take the other ½ interest in TIC split between them.* Who are the super creditors? Mortgagors, Taxes and Assessments(IRS, State, HOA, COA), creditors who worked on your house or property.* Devise restrictions?        ○ Rule 1? Minor child?- automatically blocked, per 401, thru operation of law (which is intestacy). Spouse has option to do TIC.        ○ Rule 2? Spouse?- must all go to spouse* Know 4b analysis! Who does it inure to?? Courts say it can go to grandchildren, since they could have gotten.* 4c- lifetime restriction on alienation* And, who gets it at death

Election Hypo-

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WHEN would someone make an elective share?* Its anytime that the 30% is more than she would get without it.* Hypo- H's will names wife as only bennie.* H has probate assets of 200K and 50K claims* H and bro have 200K JT in land* H and wife own titel to vacation home 200K in TBE* H created revocable trust for benefit of H for life, remainder to C, his sone from 1st marriage. 650K

So,* 15oK* 100K* 100K* 650K* $1,000,000* Step 2 is multiply times 30%* = 300K* Step 3* Satisfy 300K with first prop going to her. 150K will, plus 100K TBE=250K. So, 50K balance.

Lapse & other issues

* Simultaneous death        ○ What if no evid who died first?                § You assume bennie died before testator, b/c we want to avoid 2 steps of probate        ○ Lapse only applies if there was a will, and named bennie was a devisee        ○ If T died TESTATE amd the named bennie died first, then LAPSE issue.                § Was deceased bennie a GP or descendent of a GP of T? Continue analysis…               * Pretermitted?        ○ What if child is born AFTER will is executed. (time frame 2) and then the child dies before T?        ○ Lapse doesn’t apply b/c child NOT a dead devisee.        ○ Preterm child only applies to kids born after will and 732.302 gives them amt equal to intestate share               Intestacy Qs        2 basic rules        1 . A descendant who has living ancestor is NOT an elig taker        2/ disregard anyone who died withot issue               Other heirs- descendants of decedent first. Then to mom and dad. Then to brothers and sister s and their descendants. Then, if no one there, split half and half, to to grandparents.               Halfbloods- only g et half                      Mental elements        1. Nature expect        2. Bounty        3. Effect of making will               Undue influence        Not free will of T, but agency of someone else.

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        3 elements        1. Substantial bennie        2. Confid relation        3. Actively procure                i. Bennie present at exec                ii. Bennie present When will discussed                iii. Rec attny                iv. Knowledge of contents of will                v. Give attny instructiosn                vi. Secure witnesses                vii. Storing will                               This shifts burden of proof.                               Know Carpenter case.               * Revocation* Only 2 ways1. Suseq valid instrument2. Phys act

DRR-* Anti revival* Time gap

Problems caused by time gap* Changes to property        ○ Ademptions, accessions, abatement, etc.* Changes to people        ○ Death                § Lapse/antilapse                       ○ Birth                § Pretermitted                       ○ divorce

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