trusts & wills_tiersma (fall 2006)

8/7/2019 Trusts & Wills_Tiersma (Fall 2006)

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TRUSTS AND WILLS

I. INTRODUCTION

A. Constitutional Right to Dispose of your property at death1. Hodel v. Irving: About the Indian land consolidation act of 1983: no undivided

fractional interest of any tract shall descend by intestacy or devise but shallescheat to the tribe if the interest represents less then 2%of the total acreage in thetract and has earned its owner less then $100 in the last year. At some point the land

will begin to accumulate with the tribe. Issue: is this unconstitutional under thetakings clause? There was no compensation of any sort to the owner for the interestin the property. Govt cannot take private property for public use without justcompensation. Is this actually a taking.a. Where on the continuum between a taking and a regulation does this fit:

Look at thei. economic impact: is there much of an economic impact on them.

Depends on how you look at it. They get less then $100 a year for itbut the interest has value in itself somewhere between 1 and 2thousand. It does have an economic impact.

ii. Does it interfere with investment backed expectation: they did not

have any investment backed expectation but the tribe had gave upthe rights to their previous reservation when they accepted this deal.But iffy because these people had no real investment backedexpectation. They were not improving the land and it was just giveto them.

iii. Character of the governmental action: This is what tips the scale.Otherwise it might be constitutional. The character is extraordinary.This one of the sticks in the bundle for property rights, it has beenthat way since fuddle time (but this is wrong also the Indians did nothave this right they had common land). They do get back acommunal interest in the land as it goes back to the tribe this is the

communal interest in reciprocity.b. Holding: Yes, it was a constitutional violation but only if it completely

abrogates the rights to descent and devise. The rights is of the decedent.

Dissent: when the property passes to the family through the laws ofintestate

Devise: when property passes on by the will of the decedent.2. There is no constitutional right to an expectancy in property3. Could be a standing issue with heirs enforcing the rights of decedents, but court

turned a blind eye to that issue.B. Partial and complete Restraints

1. Complete restraints that violate public policy are void

2. Partial restraints are allowed.a. Shapira v. Union National Bank: There was a condition in a will that the

testators son marry a Jewish girl within seven years to get his share. Bothof her parents had to be Jewish. The P tried many arguments including:violation of a constitutional right, fundamental right to marry and to equalprotection and the court could not enforce this condition because of thedoctrine of shelley v. kraemer. There was no state action because courts didnot have to enforce the condition for it to have an effect (executor wouldjust not give him the money). Public policy is in favor of marriage and so


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full restraints will be invalid but there is one exception when you prevent aremarriage. A partial restraint is only some condition on who you canmarry. These are usually permissible unless there are extraordinarycircumstances. The partial restraints cannot be unreasonable.i. Rule: a restraint to induce a person to marry within a religious faith

is valid if and only if under the circumstances, the restraint does notunreasonable limit the transferees opportunity to marry. This makes

the standard whether it is reasonable as to him. Whether he wouldbe deterred or prevented to marry.

What if he is gay? It could be unreasonable as applied to him.

There is a pubic policy against divorce just like there is for marriage.

Sometimes the question of who is Jewish or catholic is vague andtoo vague to enforce.

What if there is a condition subsequent that a person remain apracticing catholic? That involves too much intrusion intoquestioning the religion and then continuing the supervision. Somost courts will not enforce that type of condition.

destruction of property: Ex. I would like to have my works of artdestroyed, etc. (house). It is unclear but for our purposes the answeris not if it is particularly wasteful. Courts refuse to carry it out onpublic policy grounds.

b. Among the rules of law that prohibit or restrict freedom of disposition incertain instances are those relating to spousal rights; creditors rights;unreasonable restraints on alienation or marriage; provisions promotingseparation or divorce; impermissible racial or other categorical restrictions;provisions encouraging illegal activity; and the rules against perpetuitiesand accumulations. In one case the court in NJ did not uphold a provisionthat required the testators brothers and sisters not to communicate with adisliked brother and sister.

C. Probate1. probate and non-probate property

a. Probate property is property that passes under the decedents will or byintestacy. Probate property may have to go through a court proceedingincluding probate of a will or a finding of intestacy.i. what is the purpose of probate? proving that the will a valid. Also

probate functions to pay off creditors and also to distribute themoney.

ii. Why bother to go through probate? It will transfer title to propertythat has a title. Also you need access to bank accounts. The bankwants good evidence and typically the evidence from the probate

court is good enough. The bank has no way itself to determine thevalidity of the will. Probate also determines which will is valid andany ambiguities.

b. Non-probate property is property passing under an instrument other than awill in manners including:i. Joint tenancy property, both real and personal: the survivor gets the

decedents share of the property. It is common for bank accounts,brokerage and mutual fund accounts, and real estate to be held likethis by married couples.


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ii. Life insurance: paid to beneficiary on the policyiii. Contracts with payable on death provisions: for example, pensions

could have a death beneficiary.iv. Interests in trust: trusts assets are distributed directly b y the trustee

to the beneficiaries named in the will and do not go through probate.v. Why try to avoid probate? It is expensive, generally need a lawyer to

help you. There are fees set by statute, it is about 2-3% of the estate.

But for a small estate it is not profitable to avoid probate. Anotherreason to avoid probate is that it can be slow. Most states can getthrough probate in less then a year if no problems. That could causeproblems if for example there is a family business that way youwont need the judges approval for every thing.

2. administration of probate estatesa. History and terminology

i. Executor: the person who is named in the will as the one to executethe will and administer the probate estate

ii. Administrator: what the person is called when a person dies testateor intestate and there is no person so named. They are appointed by

and under the control of the probate court. Use the following orderspouse, children, parents, siblings, creditorsIn either case they are the one who 1. inventories and collects theassets of the decedent; 2. manages the assets during administration;3. receives and pays the claims of creditors and tax collectors; 4clears any titles to cars, real estate, or other assets; and 5. distributesthe remaining assets to those entitled.

The administrator must give a bond unless the will waivesthat requirement.

iii. A person dying testate devises real property to devisees andbequeaths personal property to legatees. Or you can just use the

words I give for either.iv. When a person dies intestate we say that real property descends to

heirs and personal property is distributed to next of kin. At commonlaw they did not mean the same thing but today there is a singlestatute of descent and distribution governing intestacy so they arethe same thing.

b. a summary of probate procedurei. 3 functions of probate

Provides evidence of transfer of title by a probated will ordecree of intestate succession;

it protects creditors by requiring payment of debts; and

it distributes the decedents property to those intended afterthe creditors are paid.

ii. Where should an estate be probated:

It should first be probated in the domiciliary jurisdiction:place there person was domiciled at death.

If there is real property in another jurisdiction then ancillaryadministration is required in that jurisdiction.

iii. Process


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Someone files a petition to open probate (usually one of the heirs)and they attach the will. Probate must be open in the state where thedecedent is domiciled.

The court then notifies any potential known heirs or beneficiaries(so if someone else has a different will they have notice)

If no one contest within a couple of months, then the court generallyadmits the will to probate.

The court then appoints someone to guide the probate process(generally a family member is appointed to be the executer). Theexecuter receives from the court a document called a letterstestamentary (papers of authority to act on behalf of the state; sonow you can collect the assets like the bank accounts). The executormust post a bond to compensate the heirs if they do somethingwrong; however in a will this requirement can be waived in the will.This person is entitled to fees (2 or 3%) but they may waive the feesif they inherit under the will.

The executer must give notice to creditors that the estate is about togo through probate and that they have a limited amount of time tobring their claims and get the money from the estate before it isdistributed to the heirs/beneficiaries (because once its distributed,then their claims can no longer be recovered on).

c. Ways to Probate a Will:i. English form:

ex parte form: this is where the administrator admits the will toprobate and began administration of the estate, execution of thewill was proved by the oath of the executor. This was fine ifnobody raised any questions, if they did they could file a caveatwith the court to compel the probate in solemn form.

Solemn form: notice to interested parties was given by citation,execution of the will was proved by attesting witness.ii. Modern approach: Most states dont use the English form and they

dont have ex parte. They required notice to interested parties beforeappointment of administrator or the probate of the will.

d. Courts duties to supervise: Usually the court has to supervise and approvethe inventory and appraisal, payment of debts, family allowance, grantingoptions on real estate, sale of real estate, borrowing of funds andmortgaging of property, leasing of property, proration of federal estate tax,personal representatives commissions, attorneys fees, preliminary andfinal distributions, and discharge of the personal representative.

In some states the court does not have to supervise if all of theinterested parties are adults.

The UPC says that it will be supervised if an interested partydemands it if not the probate is unsupervised.

e. Advantages to probate:

Someone may have many creditors that they don't know about(doctor that may have malpractice claims), and statute of limitations(non-claim statutes) may limit the claims.

- Self-executing non-claim statutes: statute of limitationsstarts by itself upon death (two months or forever barred)


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(for estates not handled through probate)(no noticerequirement).

- Non-Self-executing non-claim statutes: statute oflimitations are started by the probate process and oncesomeone is named as executor. Generally are muchshorter (one to two years) (notice required: actual noticeto all known or reasonably ascertainable beneficiaries).

Have to follow due process because this is stateaction taking away property: they need actual notice. Letter in themail is good enough

Will Contest:- Must have standing (pecuniary interest in the outcome,

more money if the contest is successful, trustees fee isnot considered a pecuniary interest)

- Only a limited period of time to bring a will contest.- Trustee: the trustee gets 1% of the trust as a fee per year.

A trustees fee does not qualify as a pecuniary interest tobring a will contest.

f. Closing the estate: The representative is not discharged from fiduciaryduties until the court grants discharge.

D. Professional responsibility: not in probate court but in a separate proceeding in trial ct.1. duties to intended beneficiaries

a. Modern rule is that an attorney has a duty to the intended beneficiaries of awill.i. Simpson v. Calivas: Malpractice action against father attorney. The

problem was that the will left a life estate to the step mother in thehomestead and the term was ambiguous, it could have meant justthe house or the whole 100 acres of land including the house. The Dhad notes indicating that it was the decedent's intent to leave just the

house in life estate but the court did not consider that. The courtfound that there was a duty for negligence because the beneficiariesunder a will are intended beneficiaries and are the ones thatforeseeably would be injured by the breach, also the father would bethe only one to have standing to sue but he would have no damages.There is a contract action because the son was a third partybeneficiary. A person is a third party beneficiary where the contractis so expressed as to give the promisor reason to know that a benefitto a third party is contemplated by the promisee as one of themotivating causes of his making the contract. The intendedbeneficiary is a third party where the client has identified whom he

wishes his estate to pass to. In this case the conclusion of the testators intent was not

determinative in a malpractice action because the probatecourt determines the intent of the testator as expressed in thelanguage of the will and if ambiguous then some otherextrinsic evidence, but that is not necessarily the testatorsactual intent.

If there is a change in a law that will effect a persons willthere is an ethical obligation to notify the person of the


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change in the law that might effect the will unless the clienthad gone to another lawyer.

b. There are only 9 states that hold that strict privy is required for the drafter ofa will to owe a duty to the intended beneficiaries.

INTESTATE SUCESSION

I IntroductionA. How Intestacy Questions usually arise

1. person does not have a will2. person has will that does not dispose of all of their assets3. part of all of the will is invalid.

B. Rules of intestate succession are set by the legislature. They have two considerations:1 determine what the average person would want and2. what they should want to happen with their assets.

II. Qualifying propertyA. Community Property:

1. Californias rule: All Property acquired in CA during marriage is communityproperty.a. 100 In ca when a spouse dies the community property is split

When the husband dies (for example) the wife owns half of the communityproperty. If you have a will each spouse can only give away half of theircommunity property.

2. Separate property: in a separate property jurisdiction each spouse owns what everthey earned. But where is there is a divorce in those jurisdictions the husband doesnot automatically get it all, they usually have an equitable split of the property.a. When the H dies if he owns all of the property then he can cut the wife out

of the will and all of the money. To protect from this happening most ofthese separate property jurisdictions have a forced share/spousal share, onaverage a spouse has to leave at least 1/3 of the estate to the survivingspouse and if they dont the spouse can force the share in probate.

B. Quasi-community Property: , this is personal property acquired by a married coupleoutside of the state in a separate property jurisdiction and would have been communityproperty if earned in CA. the effect of calling quasi community property is that it effectsinheritance and intestacy but does not change it from separate property. (if they had gottena divorce then H would get it all). Basically the same thing happens on death under 101 ashappens under 100.

C. Separate Property: People can have separate property in California. If you have separateproperty and you dont co-mingle then it stays separate. (inherit and prior property and giftare ways to get separate property and if you earn money or property in a separate propertyjurisdiction).

D. The Intestate Share of Community and Quasi-Community Property: 6400

Spouse gets everything: she gets the one half of the community property and quasicommunity property that still belongs to the decedent after the wife takes her half. If theyhad a will the decedent could have given away his half of the community property.

III. Laws of Intestate SuccessionA. Community and quasi Community: Half of the community and quasi-community estate

goes directly to the surviving spouse (100 & 101). The other half goes to the survivingspouse as well if it is not disposed of by will. (6401).1. Special problem of simultaneous death of spouses: A person succeeds to the

property of a decedent only if the person survives the decedent for an instant of


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a. All separate property to the surviving spouse where decedent leaves nosurviving issue, parent, sibling, issue of sibling.

b. of the separate property where (i) the decedent leaves only one child orthe issue of one deceased child, or (2) where the decedent leaves no issuebut leaves a parent or parents or their issue or the issue of them (nieces andnephews).

c. 1/3 of the Separate property, (i) where the decedent leaves more than one

child, (ii) Where the decedent leaves one child and the issue of one or moredeceased children, or (iii) where the decedent leaves issue of two or moredeceased children.

2. Intestate estate not passing to surviving spouse (either just separate property or ifthere is no surviving spouse, then it includes all property).a. To the issue, if they are all of the same degree then they all take equally. If

of unequal degree then look to 240. this is the first parentela.b. if there are no surviving issue then to the deceased parents equally.c. if no issue or parents then to the issue of the parents, if they are all of the

same degree then they take equally, if not then follow 240. b and c make upthe second parentela.

d. if none of the above go the grandparents generation, if none of them surviveit goes to their issue taking equally if they are all of the same degree iskinship, otherwise look to 240. this is called the third parentela. In mostjurisdictions it stops here and the estate will escheat to the state.

e. if none of the above survive it goes to the issue of the predeceased spouse.If they are all of the same degree of kinship they take equally, otherwisefollow 240.

f. if none of the above, then to the kindred in equal degree. But where thereare two or more collateral kindred in equal degree who claim throughdifferent ancestors, those who claim through the closest ancestor arepreferred to those claiming through an ancestor more remote.

g. If no next of kin then it goes to the mother and father in law if they are notalive then to their issue.

C. Distribution among heirs or beneficiaries: four models1. Per Capita: Not a representational system. Literally means by the head.

i. If you say per capita to my children: what means only to the living children.Courts usually assume that if you say per capita you actually mean perstirpes. If you want to use this then you have to explain that you know whatyou mean and you want per capita.

2. English per stirpes: the generation below the decedent is where the money isdivided up and then the lower generation takes by representation. About 14 states

3. Modern per stirpes: of the states including California (240). This is where the

money is divided up at the highest generation what has representation. If there is norepresentation in the childrens generation then the estate is divided per capita atthe next generation with representation. Work out the same as the English rule ifthe generation below the decedent has a representative.

4. Per capita at each generation (UPC): at the generation closest to decedent wherethere are living heirs the estate is divided into equal shares and that living persongets his share. Then the rest of the estate combined into a pot and then in the nextgeneration the pot is divided equally among those whose parents have predeceasedthem. This is the law in 12 states including Colorado and New York.

5. General notes:


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a. In some cases a will that says to decedents of A per stirpes, the will beinterpreted under the intestate succession rules of the state.

b. the estate is only divided among people then living or those deceasedmembers of the generation with issue otherwise they are ignored.

IV. Who Counts as HeirsA. Half bloods: treated as if they were whole bloods.B. Disclaimers: Disclaimed interest passes as though disclaimant predeceased decedent.

1. Procedure: must be in writing, signed, identify the decedent, describe the interestbeing disclaimed, and state that it is a disclaimer and the extent of it.

2. A disclaimer is valid against disclaimants creditors3. a disclaimer of a life estate accelerates the remaindermans interest.4. Disclaimer can be made on behalf of an infant, incompetent, or decedent.5. should be filed with the probate court within the specified time period.

C. Disinheriting: a person cannot disinherit a person just by putting a statement in a will.essentially they have to account for all of their estate because anything that goes byintestacy will pass under the laws which are not changed by any statement in the will.however the new upc will allow it and the person is treated as if he had disclaimed hisintestate interest.

D. What it means to be children1. Adopted children

a. Inherit from adoptive parents same as natural child: for purposes ofsuccession, an adopted child is deemed a descendant of the person whoadopted her. She inherits from the adoptive parents and from their relatives;they inherit from her.

b. Do not inherit from natural parents: an adoption severs the relationship ofnatural parent and child, thus the adopted person does not inherit from hernatural parents or their relatives.i. Hall v. Vallandingham: child was adopted by a step father, andwould have inherited from natural fathers relatives. The court held that

children cannot inherit. The law relieves the biological parents of allparental duties and obligations and the estate and trusts article governsinheritance. The estates and trusts article says that an adopted child shall betreated as the natural child of the adopted parent or parents, this means thatthey can inherit from their adopted parents. On adoption a child is no longerconsidered a child of either natural parent except that upon adoption of thespouse of a natural parent the child will be considered the child of thatnatural parent as well.

c. Exception to the no not inherit from natural parents rule: UPC 2114i. the natural parent and adopted person lived together at any time as

parent and child, or the natural parent was married to, a domestic

partner of, or cohabitating with, the other natural parent at the timethe child was conceived and that parent died before the birth of thechild; and

ii. the adoption was by the spouse or domestic partner of either of thenatural parents of the adopted person or after the death of either ofthe natural parents.

iii. The natural parent still will not inherit from the child.d. Inheritance from or through a child by either natural parent or his kindred is

precluded unless that natural parent has openly treated the child as his and


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has not refused to support the child. Follow this rule for purposes of thiscourse.

e. Note case: lesbian couple, one parent has a kid and the partner adopts it.Under the UPC the rights of the mother may be cut off because the adoptingparent is not the spouse of the natural parent.

2. Adult Adoptiona. In most jurisdictions they are treated the same as minors. One effect can be

to reduce the possibility of a will contest. It can be to make sure they inheritmoney. This could also deprive other relatives of standing to contest a will.

b. Rule against allowing subterfuge: an adoption of a spouse by the otherspouse for the purpose of making the adopted spouse an heir is not going toconfer any inheritance rights on the adopted spouse, but it may still beeffective for other uses. (such as avoiding a will contest)i. Minary: the holder of a life estate adopted his wife because the

children of the life estate holders were the remainderman. The courtdid not allow this because it would have frustrated the intent of thetestator (even though under the code, she should have taken.)

3. Equitable Adoption

Oneal v. Wilkes: P was born out of wedlock and father disappeared and neversupported her, the mother dies at age 8. she was later taken in by Estella Page whowas her fathers sister. Ms. Page gave her to the Cooks because they really wanteda daughter. Non of these people were her legal guardian or adopted parents. Thecooks divorce and she stays with Mr. Cook. He died and she wanted to inheritunder the laws of intestate. She tried to use the theory of equitable or virtualadoption. And in this case Page did not have capacity to enter into a contract withthe Cooks and so there was no contract/agreement. The court did not say that theaunt was acting on behalf of the father. This result does not seem equitable becausethey focused on capacity and not equitability.i. Rule: there has to be some showing of an agreement between the natural

and adoptive parents, performance by the natural parents of the child ingiving up custody, performance by the child by living in the home of theadoptive parents, partial performance of the foster parents in taking thechild into the home and treating it as their child, and the intestacy of thefoster parent. This only lets them inherit from thefosterparents it does notgive them all of the rights of an adopted child. (does not go both ways)

4. Post humus children and post humously conceived childrena. Posthumous Children: Typically involves a child who is conceived before,

but born after, her fathers death. If it is to the childs advantage to betreated as in being from the time of conception rather then the time of birththen the child will so be treated. There can be a presumption for paternity

when a child is born to a widow within 20 to 300 days after the fathersdeath

b. Posthumously-conceived child: born and conceived after the death of one orboth of the childs genetic parents.i. Hecth v. Superior court: case where natural children of decedent

challenged a provision in his will that gave vials of his sperm to hisgirlfriend to have children. The court allowed it because it did notviolate the law or public policy, also it does not violate public policyfor single women to conceive children.


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ii. Problem with posthumously conceived children: Inconvenientbecause you cannot close probate and distribute money to childrenwhen you dont know how many there will be.

iii. Woodward v. Commissioner of Social Security: This mother gavebirth to twins after conceiving the children from sperm of herhusband that was frozen after he learned he had leukemia. She triedto get death benefits for both her and her two girls. Under the law of

social security administration the court should look to whether thechild would have been able to inherit under the states intestacy lawsto determine if they were actually a child. The wife argued that thegenetic child should always inherit and the government argued thatthey were not in being at the time of death and so could neverinherit. The court did not adopt either of these. The court said therewere three considerations

- the best interests of the children- the states interest: (a) in requiring certainty of filiation between

the decedent and his issue (was he really the dad); and (b) byestablishing limitations periods for the commencement of claims

against the estate (used within a reasonable amount of time sothat probate can be closed).

- honoring the reproductive choices of individuals: the motherdoes not have an argument because she obviously was allowedto conceive the children without interference by the state. Thefather may have an argument but the court says that just by thefact that he donated the sperm does not indicate that he chose tohave a child after his death, there could be many other reasonsfor having the sperm frozen.

Outcome: 1. There needs to be a judgment of paternity: marriage,acknowledgment, court determination. Need to get this within a

reasonable amount of time. You may not have to do it in 1 yearbecause that is unreasonable. They leave it up to the legislature. 2.The mother needs to prove that the father consented to use the spermto create the child after death. 3. And the father needs to acceptfinancial responsibility and agree to support the child

5. Illegitimate childrena. At common law they were treated as the children as nobody. Reason:

because they dont want the illegitimate children of the upper class toinherit the family money.

b. Modern Rule: Apply mid level scrutiny because of equal protectionproblems.

i. Need a substantial justification that serves a legitimate state interest.There is not justification for denying the child to inherit from themother in intestacy. There could be a problem for the father becauseyou cannot be sure. The state does have a justification for insistingupon reliable proof of paternity. Have to file a petition to establishparental relationship, or by acknowledgment by the father, or byclear and convincing evidence of paternity after the death of thefather (this is hard to prove, need genetic testing).

c. CA rules


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i. Mother: relationship is established by giving birth or havingsomeone act as a surrogate mother for her.

ii. Father:- presumption created by marriage, or attempted marriage

before the birth or within 300 days of termination- presumption if they married after birth but father is on

the birth certificate or the father makes a voluntary or

involuntary promise to pay child support- Paternity action: but if after death of the father have to

have clear and convincing evidence that father held thechildren out as his own.

- By the father receiving the child into his home andholding it out as his natural child.

6. Children and property in a willa. Can make someone a guardian of childrenb. Can make someone a guardian of property (this will result in more court

interference)c. If you want less interference then appoint a custodian to minors.

d. You can also set up a trust and make someone a trustee who will allocatethe money to the children. This is the most flexible and expensive way toallocate things to the children.

E. The Slayer Rule1. For purposes of the test we will use the method that allows the person to inherit but

will impose a constructive trust.2. In Re Estate of Mahoney: A wife was convicted of manslaughter for killing her

husband after his wife shot him. The probate court distributed his estate to hisparents under the intestacy laws as if his wife was dead. The wife appealed thedecision. There was no law on this in Vermont, but they did look at other state.They said there were three options

a. use the slayer statute so that the killer will not profit from the wrongdoing b. give legal title to the slayer anyway because it would be unwarranted

judicial legislation in not following the statutes and dont want to imposeadditional punishment for the crime.

c. give the legal title to the slayer but under the laws of equity hold him to bea constructive trustee for the heirs or next of kin of the decedent. Thereasoning is that it does not interfere with the laws of descent and devise butit prevents the slayer from profiting. But if there were any property the hewould have been entitled to had there been no killing is allowed to pass tohim so that it is not an additional penalty.

- Voluntary v. involuntary: The court says that the line is drawn between

involuntary manslaughter and manslaughter because one had intent andso bad faith and the other is an accident.

- However the court says that the probate court does not have authority toorder a constructive trust and the heirs with standing asks the court ofchancery (with equitable powers) for the constructive trust.

- Burden of Proof: The conviction of a crime is enough to be evidence ofwrong doing but that is not required. The court imposes the standard ofpreponderance of the evidence. The court can even decide that a personwas a slayer even if they were acquitted of criminal charges.


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WILLS

I. WILLS: CAPACITY AND CONTESTS

A. Will Contests1. Typical grounds

a. failure to satisfy requirements of a valid willb. lack of testamentary capacity.

2. Procedure: after a will is admitted into probate, the statute for contesting a will in

CA is 120 days.3. Standing

a. must have a pecuniary interest in the outcome of the contest (i.e. better off) b. look closely when there are multiple wills

4. judge/jurya. juries are more sympathetic to the family of the decedentb. judges are less sympathetic and often overturn decisions by juries.c. CA only uses judges

5. Preventing will contestsa. No contest clause: if any legatee contest this will that person will loose any

benefit under the will. if you win then the whole clause is ineffective but if

you loose you loose everything you would have gotten. If you dont givesomething, then it wont have any effect. The most widely used test is thateven if they loose the no contest clause will not be enforced if thechallenger had probable clause.

b. consider adult adoption or a no contest clause.

B. Mental Capacity: Have to be 18 and have mental capacity CA 6100 and 6100.5.1. A person is not mentally competent when they do not have sufficient mental

capacity to be able toa. understand the nature of the testamentary act (what making a will is about,

probably this is the most stringent)

b. understand and recollect the nature and situation of the individualsproperty, or

c. remember and understand the individuals relations to living descendants,spouse, and parents, and those whose interests are affected by the will.

2. Estate of Wright: This old man died and left one of his properties to a friend and hisdaughter contested. He approached Grace Thomas who was not an attorney but anotary public and a realtor. She helped him write the will and two people attested toit. He had a paper of where he wanted his assets to go. One house to his friend oneto his daughter and some property to his grand-daughter, and one dollar to anumber of people. Her contest was that he was of unsound mind. The court saidthat the evidence was not sufficient to support a finding that he was not of sound

mind to make a will. At the probate hearing they offered a lot of evidence. Thenotary said that he was unsound because he gave a dollar to some people and shethought he was clear. Others said that he was of unsound mind but could not sayway. Others had examples of weird things he had done and how he alienated somefamily members, had been injured in the head, he drank. But this does not indicatethat he did not know who his heirs were and that he did not recollect the nature ofhis property and he probably understood the nature of the testamentary act.

3. Witness to a will will be scrutinized when they try to challenge the capacity of thetestator, because they signed the will and they are attesting that he was competent


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to make the will. usually there is an attestation clause that says that the testator wasof sound mind.

C. insane delusions1. A delusion is: an incorrect belief that may or may not be influenced by a mental

aberration but it cannot be corrected if you are presented with the facts. If norational person could reach that conclusion based upon those facts.a. 6100.5: the individual suffers from a mental disorder with symptoms

including delusions or hallucination, which delusions or hallucinationsresult in the individuals devising property in a way which, except for theexistence of the delusions or hallucinations, the individual would not havedone. (causation requirement)

- Must show insane delusion- Must show delusion cause the individual to do something she

otherwise would not have done.b. In re Strittmater (wrongly decided): Ms. S left her estate to the national

womens society. Her problem was that she hated men and had problemswith her parents after they died. She said really mean things about herparents and men and wanted to kill male babies. The court says that this is

an insane delusion. Has she lost contact with reality? No. Did she have afalse belief about reality? No. What is the delusion? Even if there was aninsane delusion what is the other problem with the case? That there is acausation element, the delusion caused her to dispose of her estate in amanner that she would not have chosen otherwise. There is a problem withthis element. But the court came out the other way.

c. In re Honigman: This is the case where the husband only left her statutoryshare (a life estate) $2,500 dollars to his wife and left some money to hisgrand nieces and nephew and left half of his estate to his brothers andsisters. He did this because he believed his wife was cheating. She had theburden of proof, she has to prove by a preponderance of the evidence. The

evidence is that they were happily married and he got sick and started actingstrange. More evidence was that he expressed suspicions to people, that shehid men in the cellars and closets and pulled them in the window using bedsheets, and that he heard noises of men running from the house. There isevidence that supports an affair. There was a suspicious anniversary cardaddressed only to her and not on their anniversary. He also saw a man enterthe house after he left and she always answered the telephone, but you haveto belief this evidence. This seems to be the rational basis for the belief, buta rational person probably would not come to this conclusion under the testwe apply. The cases go back and forth on whether the standard is could orwould. Also have to have causation. Assuming that he was wrong, is it

insane? The majority rule is that if a rational person could or would reachthat conclusion then it is not insane. In this jurisdiction they use theminority test is that if there is a delusion then it is up to the proponents ofthe will to show that there is a rational basis for the belief (this is a weakerstandard).

2. Mistake v. delusiona. If it were a mistake you would change your mind if presented with the truth

and if it were a delusion you still would not change your mind. Courts willnot invalidate a will because of a mistake.


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D. Undue influence 6104: the execution or revocation of a will or a part of a will isineffective to the extent the execution or revocation was procured by duress, menace, fraudor undue influence.1. The test for undue influence

a. Have to show that the testator is susceptible to undue influenceb. The influencer had disposition or motive to exercise the influence.c. That the influencer had an opportunity to exercise undue influence.

d. The disposition is the result of the influence (this is a causationrequirement).

2. Lipper v. Weslow: This woman died and she had two children and grandchildrenby a predeceased son. They contested the will on the grounds of undue influence bythe son Lipper. He lived next door and was an attorney. They said that he despisedthe deceased brother and did not want his children to get anything. she was 81 yearsold and he drafted the will. also they argued that the will was not read to the testatorafter it was written. The will had a specific clause saying that they did not getanything and why. This may not have been effective because the son wrote it.There were witness who said that she had stated to them that she did not intend toleave them anything and later that she did not leave them anything. the court held

that there was no causation and that the testator was not susceptible to undueinfluence.

3. Presumption of Undue influencea. Lawyers who write wills:

i. If you are a family member you can usually benefit yourself (or yourrelatives). Under both MR 1.8 and CA law. Also the lawyer couldget disbarred.

ii. If you are not a relative you cannot give yourself a gift apresumption arises that there was undue influence and the lawyerhas to disprove it by clear and convincing evidence.

b. Will of Moses: Ms. Moses had a lover who was a lawyer, 15 years her

junior, whom she left her estate too. They were not married and he did nothelp in drafting her will. She was a successful business who owned andmanaged apartments. The court there allowed the presumption of undueinfluence because of the confidential relationship (this is a minority statethat does not required that the person in the confidential relationship beactive in the procurement or execution of the will)(in CA you need morethen the confidential relationship, you need to show that the lawyerparticipated in the drafting and preparation of the will) He could overcomethe presumption by proving that she had the advice of independent counsel.(this is the only way to shift the burden in Mississippi)The court held thatthe evidence of the independent attorney was not sufficient to rebutted

presumption. They said that he did not ask about her relationship withpeople that are being discluded, and they did not discuss the problem of theattorney client relationship. This lawyer just wrote down what he was toldand did not give much advice. He did ask about her close relatives.

c. Rebutting the presumption, The Rule we use: when the presumption isshifted the party has to show by a preponderance of the evidence that theparty is not susceptible, of any of the other three things. Not all arenecessary because they are just factors to consider. Most jurisdictionsrequired the person in the confidential relationship to actively participate inthe drafting of the will. dont follow the rule that there is only one way to


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rebut the presumption, instead we will say you can rebut the presumptionany way you want.

3. What does undue influence mean? Look at what the influencer is doing along withthe state of the person they are influencing. Lord Hannen says the essence of undueinfluence is coercion. But really it is substitution the influencers action and desiresfor those of the testator.

4. can a person use undue influence over a great distance? Example: son left Germany

and his mother wanted to escape. He required that she leave everything to himbefore he brought her here. Also the will indicated that he wrote it in English and itwas translated to German.

5. Problem of courts abusing the doctrine of undue influence, when the actions of thetestator do not comport with societal norms.a. In Re Keufmanns will: Robert was a wealthy man who owned considerable

shares in Kay Jewelers. He had a gay relationship in NY with a man namedWalter. Robert made wills each year leaving more and more of his estate toWalter, he also gave him authority to make medical decisions and wrote acoming out on death letter to his family to explain the relationship.Robert pursued his art while Walter managed the household and the money

and gets involved in the family business. Upon death Roberts brotherchallenged the will and two juries found that there was undue influence. Anappeals court agreed saying that Walter dominated Robert, that Robert wasbasically susceptible to undue influence. The court even said that the letterwas more evidence of undue influence. The letter in this case seems like itshould have helped more then in the lipman case because it was separateand seemed to be in his own words. He could have video taped something.

E. Fraud1. Elements

a. Misrepresentation (false statement of fact, generally to the testator)b. made with intent to deceive the testator

c. with the purpose of influencing the testamentary dispositiond. the misrepresentation causes the testator to dispose of property as they

otherwise would not have done.2. Invalidates parts of a will or the whole will if the fraud is inseparable or effects the

entire thing.3. 2 types

a. Fraud in the inducement: when a person misrepresents facts causing thetestator to execute a will, to include provisions in wrongdoers favor, or torefrain from executing or revoking a will.i. Puckett v. Krida: The Ds were two nurses who had agreed to be the

full time nurses of this women. They convinced the testator that her

family was misappropriating her money and that they intended toput her in a nursing home. The jury found that these facts wereuntrue, and before the manipulation she was very close to herfamily. After they became the full time nurses they started to cut heroff from everyone she previously knew, they listened in on herphone calls, etc. the appeals court said that there was a confidentialrelationship from the fact that they were her nurses and because oneof them had power of attorney. This lead to a presumption of undueinfluence and fraud which the defendants could not rebut. Goingthrough the elements: there was a misrepresentation, with intent to


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deceive, it looks like they had the purpose to influence thedisposition, and it was the apparent cause. Striking down the willmay not do justice because what if the relative that was actuallytaking care of her would not have taken by intestate.

ii. Estate of Carson: this man married the testator but she did not knowthat he was already married (several times over). She died less thenone year later leaving most of her estate to her husband. How do you

know if she would not have left the money to him had she known hehad deceived her. She could have just be grateful for the memories,etc. Also dont know his purpose he could have done it for otherreasons.

iii. Problem: friend tells testator that her niece was dead because shewould have gotten everything under the will. seems to fulfill all ofthe elements. If she did think that jean was dead then there probablywas no intent to deceive and may not be misrepresentation, keepingin mind that there could be negligent and intentionalmisrepresentation.

b. Fraud on the execution: when a person misrepresents the character or

contents of the instrument signed by the testator, which does not in factcarry out the testators intent.i. Problems: husband fakes that he burned the will but when wife dies

he probates that will. was there fraud? Yes misrepresentationbecause the act of holding up the will was a communication that thewill was in the envelope, intent to deceive, purpose, and it causedthe wife to not destroy the will or not to write a new will.

4. Remedy1. if the fraud taints the whole will, the will is denied probate. But if the fraud

only causes the testator to insert certain provisions, only those provisionsare denied probate and the rest of the will is probated.

2. Constructive trust: used there denial or probate may be an inadequateremedy. If the will is not executed, equity will impress a constructive trustin favor of the intended beneficiary against the wrongdoer. If a person byfraud prevents the testator from revoking his will, the will is probated but aconstructive trust is imposed on the beneficiaries in favor of the intendedbeneficiary.a. In Pope v. Garrett there were heirs who wrongfully prevented the

testator from executing a will in favor of her friend. The courtimposed a constructive trust on both the innocent heirs and thewrongdoers because they reasoned by the innocent ones had beenunjustly enriched by the others wrongdoing because they would

have gotten nothing.F. Duress: When undue influence becomes overtly coercive, it becomes duress. (ex: force or

threats of force or violence)1. Latham v. Father Divine: The D was a father and a group of other members of this

cult. The P was the testators first cousins (not entitled to the estate by intestatesuccession). The testator was a member of this cult headed up by Father Divine.The Ps argued that the testator intended to create a will that left them $350,000 andrevoke the old will. they said after the new will was drafted the defendants usedundue influence to prevent her from signing the new will. before her death sheexpressed intent to sign the new will, and so the Ds conspired and killed her by


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way of a surgery. The court said that in a situation like this they cannot invalidatethe will because the new will did not comply with the statute of wills (no signature)but they could create a constructive trust (which acts on the property and not on thewill) to prevent the wrong doers from benefiting from their wrong doing. Whilethere was no case law on point the court relied on other states laws and other statelaw cases with dissimilar facts. The constructive trust is a cause of action in equitybecause justice demands it.

G. Tortuous interference with expectancy1. Benefits

a. Longer statute of limitation, allows for punitive damages.b. This is not a will contest but it a tort cause of action.

2. Not a Will Contest, it is a tort action.3. Elements:

a. P must prove interference involved conduct tortuous in itself (fraud, duress,or undue influence).

4. Anna Nichole Smith Case: The testator was an oil billionaire with two sons. He metAnna Nichole Smith at a strip club. He pursued her after that meeting. Three yearslater they were married. When he proposed he promised to give her half of his

estate. After they met but before they married she was in playboy and was playmateof the year and a jeans spokes model. She brought a will contest in Texas but lost.In Ca there was a case because she spent a lot of money, and the son cuts off hermoney and she has to go to bankruptcy court. The bankruptcy court is involvedbecause she said that she was entitled to half of the estate and that the son hadtortuously interfered with her expectancy. She got $45 million in a judgment and$45 million in punitive damages. On appeal there was an issue over the jurisdictionof the bankruptcy, and the appeals court overturned it because they said that courtdid not have jurisdiction over a probate matter.

II. Execution of a WillA. Introduction

1. need testamentary capacity (Above)2. need testamentary intent3. need compliance with the requisite formalities

B. Testamentary Intent: For an alleged will to be valid, the testator must have had theintention to make the particular instrument her will.1. Present intent required: when the decedent sign the instrument, she must intend to

make a will now. A written statement of an intention to make a will in the future isnot enough.

2. An ineffective inter vivos transfer by deed is also not effective as a will because oflack of testamentary intent.

3. Sham wills: just because something says will on it, the court do not stop there with

their inquiry. They examine the will and the surrounding circumstances.4. Wrong will signed: there are two views

a. Majority view: a wrong will cannot be probatedb. minority view: the court will infer that there was mistake and that the

testator intended to sign their own will.5. Conditional Wills: a will may be made expressly conditional upon the happening of

a certain event. If the condition does not happen, the will will not be given effect.However, the language that sounds like a condition may be interpreted by a court asconstituting the testators declaration of motive for making the will and not as a


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true condition. Most often court do not read a condition to invalidate a will. Thecourts will consider extrinsic evidence.

C. Formalities1. Introduction: CA formalities

a. Must be in writingb. Signed by one of the following: the testator, in the testators name by

someone in the testators presence and in their direction, by a conservator

pursuant to a court order to make a will under 2580c. Must be witnessed and signed by at least 2 people (both of) whom are

present at the testators signing of the will or the testators acknowledgmentof the signature or the will, also they have to understand that they aresigning the testators will.i. the witnesses may not be interested, or inherit something under the

will.- under common law the signature of an interested witness

is invalid.- In CA 6112 says that the will is not invalid but instead

it creates a presumption that the witness engaged in

fraud, undue influence, duress or menace, then thewitness has to rebut the presumption. Also the witnesscan still take up to their intestate share if they cannotrebut the presumption.

ii. Only one jurisdiction requires 3 people.d. Choice of law for formalities: What happens when people execute a will in

another jurisdiction. What states formalities are required? 6113 a will isvalid if the will was properly executed in Ca or properly executed at theplace it was executed or complies with the law of the place where thetestator was domiciled either at the time of execution or death.

e. recommended method for executing a will that is valid in any jurisdiction

(keeping in mind that a state may not recognize a will properly executed inthe state at the time but not proper under the laws of the state.i. Fasten the pages together with a staple and number them and have

the testator initial every page, though not essential.ii. Make sure that the testator has read the will and understands its

contents.iii. The lawyer and three disinterested witness and a notary are in a

room and everyone else is excluded, and the testator and have themsign.

iv. The lawyer asks the testator if it is the will and does it dispose of theproperty as he wishes, and lawyer asks the testator if he wishes the

witness to sign the will. have witnesses be able to see them sign thewill. then one witness reads allowed the attestation clause.

v. The testator signs above the attestation clause and dates and thewitnesses sign below the attestation clause.

vi. Below that there is a self proving affidavit (not essential) have thenotary notarize the signatures or add a statement about the approvalof the witnesses. Why have it? Because when probating the will youwont need the witnesses to testify in court to the signing of the will.

2. The function of formalities


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a. Ritual function: has to do with the fact that people are not really seriouswhen they say things. The rituals help the testator realize the legal effectsof what they are doing. The testator intends to engage in a legally effectiveact.

b. Evidentiary function: because the main witness as to intention is dead thereis lack of evidence. The existence of a writing is good evidence of what youwould want to have happen. Before people would go to a church and have

witnesses to listen to them orally say what they want to happen to theirestate.

c. Protective function: on aspect of the witnesses is so that there is someevidence that the testator is not acting under duress and might be someevidence of mental capacity.

d. Channeling function: make is easier to determine whether it is actually awill. the testator knows that if he or she goes through the function that his orher desires will be carried out.

3. Failure to comply with the formalitiesa. Wrong will signed:

i. In Re Pavlinkos Estate: In this case the husband signed the wifes

will and the wife signed the husbands will on accident. They are trying toprobate the will that says will of Hellen because that is the one that Vasilsigned. This will made a gift to the brother and the residue would go toVasil. After that it would go to someones brother. What they want the courtto do is make some changes to the will just to switch the husband with thewife and the wife to the husband where pertinent. The court is not willing tomake these changes because the will does not comply with the formalities.Courts are reluctant to correct mistakes because they dont want people tomake mistakes commonly. Dissent: should change the will because in bothwills it seemed that the residue would go to the brother in law (EliasMartin.) in this case it seems that they did not speak English so could not

read their own wills.ii. In re Snide: The will of Harvey was signed by Rose and the will ofRose signed by Harvey. The main focus in this case was on testamentaryintent. Basically what is the intent if you sign a will that is not in fact yourwill. the Guardian is arguing that your intent is that he did not intend toexecute the document you sign. This argument is that by signing a will youintent for the disposition in the will to represent his desires and in this casethat is not true because he did not want the things in the will. The court saidthat signing a document does not mean you want this will to be your ownwill. the Courts view is committing to a testamentary scheme, or that youintend to dispose of assets at death when you sign a will. Here by signing

this will be did have intent to dispose of his property. Result is that the courtupholds the will. What is the legal basis? Harmless error or substantialcompliance, but they dont give a clear explanation. The dissent argues thatthere is no legal grounds for switching this stuff around. Further the court isnot following the statuary rule.

- Some jurisdictions have rules that allow for in somecases for courts to override the formalities.- Cannot predict how a CA court would come out on thisissue. For purposes of MC assume that the formalities haveto be followed.


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b. There are different approaches to the level of compliance requiredi. Traditional rule is strict compliance: because courts dont usually

correct mistakes.ii. Minority rule: substantial compliance/harmless error doctrines

- Harmless error: if there is clear and convincing evidencetestator intended document to be will. applies to therevocation as well as the execution of wills. Courts can

use there dispensing powers to dispense formalities.- Substantial compliance: clear and convincing evidence

of testamentary intent, clear and convincing evidencethat the will substantially complies with the formalities.(for purposes of the essay note that CA uses this rule buton MC we will use strict compliance).

iii. In re Will of Ranney: Russell had a will that left a life estate to hiswife and left some money from a trust to this institute. The wifechallenged the will and the institute wanted to probate the will. theproblem was that the witnesses signed the self proving affidavit thatstated that they had already signed the will as witnesses, when in

fact they did not sign the will as witnesses at all. The affidavits arein the past tense. When signing an affidavit you are under oath. Alsoit will be notarized. The court found that this will was not properlyexecuted because it was not properly witnessed. But the court alsosays that if there is substantial compliance then that will suffice.What is the standard? In this case it is clear and convincing evidencethat the witnesses intended to sign the will. the reasoning is that theformalities should not stand in the way when all of the formalitiesare satisfied. See formalities above. CA does not require clear andconvincing evidence. This is called the near miss standard.

iv. In re Estate of Hall: Jim had a will and he and his wife went into a

lawyers office to make a joint will. A joint will is usually wheretwo people sign the same will and it is almost always husband andwife. (it says we)This is different from reciprocal wills (wheneach have own will but give to each other) The lawyer drafts the willand they want to make some changes, the changes are written intothe draft by hand and lawyer was supposed to make the changes, butJim wants to make this will formal in the mean time. The lawyeragrees and notarizes it to confirm that it was their signature afterthey sign but with no witnesses. Jim dies before the formal will isdrawn up, his wife wants to probate the joint will but his daughterfrom a previous marriage wants to probate the old will. The lawyer

told them it was a valid will. the judge says that the notary does notequal witness and so there were no witnesses, period. Montana hasadopted the statutory provision that says that if two people dontwitness the execution of the document it will still be treated as ifthey had if there is clear and convincing evidence that this was thetestators intent(decedent intended the document to be his will) Thisis called the harmless error will or the dispensing power. Most stateshave not adopted this provision. The court said that there was clearand convincing evidence that the testator intended this to be his will.


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Evidence: He had his new wife destroy the old will, The decedentbelieved that the will was enforceable. Is the lack of witnessesenough to comply with substantial performance? Doesnt seem likeit because witnesses are a really important part of the process.

v. In case where man took will to a notary who signed the will whileher husband watched. After testator died the notarys husbandsigned because he would have been a valid witness had he actually

signed at that time. This case is before the supreme court in CA andthe three other cases in the appeals courts are split. The issue iswhether there was substantial compliance.

4. Holographic Willsa. holographic wills dispense with the requirement that the will be witnessed.b. only half of the state allow them. Fraud is a concern because of lack of

witnessesc. requirements

i. the signature and the material provisions must be in the handwritingof testator

ii. does not need to be witnessed

iii. date not required, but lack of a date may invalidate all or part of thewill if another will contains an inconsistent provision, or if there is aquestion about whether the testator had testamentary capacity.

d. What qualifies as a material provision?i. who gets whatii. naming of executor, other administrative provisions, revoking other

wills.e. Intent is often a problem

Have to show that the testator had the testamentary intent that this is theirwill. when there is a less formal document then it could be harder to provethat the testator had the testamentary intent

i. Kimmels estate: A father writes a letter to his sons. The beginningof the letter is just conversation about the weather and whether hewould be able to come and visit them. The end talked about a fewdocuments that he wanted them to keep. Then he said that ifanything happens he wanted all of the money in three bank loans orstocks or something and his house to go to his two sons, Irvin andGeorge. Then he signed Father. Is there testamentary intent? Thecourt said that it looks like he had the testamentary intent because hesays if anything happens to me. He also tells them to keep the letterbecause it might help them out. In addition the fact that he isdisposing of his property. Another common indicator of

testamentary intent is the use of legal language, though not usedhere. Next the court considers whether he signed the document. Thecourt said that he did sign by writing father, because that is how hehas signed in the past. The courts are not strict about the way yousign things, you just have to be trying to authenticate the document.Also the material provisions have to be in the testators handwriting.

f. Standard Form Willsi. Estate of Johnson: He made a will on a standard form and just wrote

in who he gave things to and how much. The court held that this wasnot a valid holographic will because they used the 69 UPC statute


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that says that the material terms have to be in hand writing and hasto be signed, and the printed parts cannot be used. First is theretestamentary intent, this is clear by the fact that he is disposing ofhis property, but the court said that the intent cannot be found in theprinted part. He also used the word estate, which is a legal term, butthe court says that this is not enough. Are the material terms in thetestators handwriting? Yeah it looks like it because all of the parts

where he is disposing of his estate were in his own writing.ii. When you are looking for material provisions most jurisdictions

including CA says that you cannot look at the printed parts. Youhave to make sense of the handwritten parts so that you understandthat it is a material provision.

iii. The modern rule and CA rule is that you can look at the type writtenparts to determine if there is testamentary intent.

iv. In re estate of Kuralt: this guy was a newspaper reporter who wasmarried but had a girlfriend in Montana living on a piece of hisproperty. He wrote a letter in 89 saying that she gets all of theproperty in Montana, then he wrote a formal will and the beneficiary

being his wife, then just before he died he wrote a letter saying thathe would have a lawyer come and make sure that she gets all of theproperty in Montana. This looks like there was no testamentaryintent. The court held that this was a valid holographic will. Tiersmadisagrees.

v. Case where the testator just used an arrow to signify that he giveshis stuff to his girlfriend, was not enough to be a material term. Thecourt could not tell what he meant by the arrow, they did not find theintent.

vi. Case where guy in hospital made a will, and gave it to a doctor whosigned Dr.s name, problem is that he could not direct someone to

sign his will if it was a holographic will, and the Dr. signed in hisown name but not the testators.

III. REVOCATION OF WILLS

A. Introduction1. Capacity requirement: a person who has testamentary capacity and who has

previously executed a will is entitled to revoke his will at any time prior to death.2. A contract not to revoke a will will not prevent a testator from revoking the will,

there could be a breach of contract action.B. Methods for revoking a will

1. By Written instrument

a. By a subsequent will (properly executed) which revokes the prior will eitherexpressly or by inconsistency.i. The revocation clause goes into effect immediately

b. by some other written instrument that complies with the statute of wills.2. Revocation by destruction: by burning it, tearing it, canceling it, destroying or

obliterating it, with the intent of revoking it and done by either the testator or byanother person in the testators presence in the testators direction.a. must be destroying the actual will and not just a copy.b. If a will is executed in duplicate then the effect of revoking one duplicate is

revoking the other.


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c. Harrison v. Bird: the attorney was directed to destroy the will however itwas not done in the testators presence.

d. Partial Revocation by Destructioni. California allows partial revocation by destruction the intent to

revoke that part must be present.ii. Some states dont allow it but maybe it could be a holographic will

if all of the requirements are present.

- Thompson v Royal: The testator has a will drawn upalong with a codicil. Later she wants to revoke the will,but instead of destroying it the lawyer just writes null andvoid because they might want to use it as a memorandumto make another will. the court said that this was not avalid revocation.

3. Presumed Revocation: There is a presumption, that if the testator had possession ofthe will before her death, but the will is not found among her personal effects at herdeath, the presumption arises that she destroyed the will. The presumption falls onthe one who wants the probate the will. They have to prove that the will is not lostbecause the testator did not destroy it.

a. What happens if the person who looks for the will is an heir who stands tobenefit from the revocation, this could help rebut the presumption.

4. Codicils: a change, amendment, or supplement to a previously executed willa. a revoked codicil has no effect and the first will as written is valid.b. revocation of a will generally does revoke any codicils.

5. Revocation by operation of lawa. Divorce: If after executing a will a testators marriage is dissolved, the

dissolution revokes the following: property given by a will by a formerspouse, appointment of an executive or trustee, or a power of appointment.This does not seem to apply to gifts made by other substitutes (that wetalked about at the beginning of the semester.)

i. revoked property passes as if former spouse predeceased the testatorii. remarriage revives any revoked provisionsiii. legal separation does not revoke the will

b. Pretermitted Spouse: applies were decedent made all testamentarydispositions before marriage but seems to unintentionally leave out his newspouse.i. spouse takes intestate share of the decedents personal property and

all community property they are entitled to.ii. covers all testamentary instruments, not just wills.

c. pretermitted child: applies where child born or adopted after testamentary6. Dependent relative revocation and revival

a. DRR or conditional revocation: this is when the testator purports to revokehis will upon a mistaken assumption of law or fact, the revocation isineffective if the testator would not have revoked his will had he known thetruth. (thus the court will uphold the previously revoked will). this doctrinedoes not carryout the testators intent but the courts assume that it is betterand approximates the testators intend more closely then going throughintestate.

b. Requires a particular state of mind (testator must have acted under a mistakebelief of law or fact) and that the testator would not have revoked if thetestator had known the truth= the will will be probated.


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c. LaCroix v. Senecal: The testator left half of her estate to her (friend) andhalf to her nephew but uses his nickname. She executes a codicil therevokes that specific provision because they want to use the real name ofthe nephew along with his nickname. Other wise the clause stayed the same.The codicil was ineffective because it was witnessed by one of the granteeshusband. Can the court apply DRR? She did make a mistake of law (thathaving this guy sign would mean the friend gets nothing) and the testator

would not have revoked the clause if she had known because she clearlywants the friend to get something so if she had known the truth she wouldnot have revoked the original will.

d. when a testator reduces a grant then it is harder to make the argument thatshe wouldnt have revoked but for the mistake.

7. Revival:a. Most jurisdictions will hold that then a will or codicil that revokes a

previous will, will not automatically revive the previous will uponrevocation unless there is evidence concurrent or afterwards that the testatorintended the first will to take effect as executed. This includes CA.

b. Minority of the states will allow the revocation of the newer will to

automatically revive the previous will.

IV. COMPONENTS OF A WILL

A. Integration of wills: under this doctrine all papers present at the time of execution, intendedto be part of the will, are integrated into the will. have to be careful to keep the pagestogether so that there arent any disputes. Some states that dont have this doctrine arestrange because the implication is that wills have to be on one page.

B. Republication by codicil: this doctrine says that when the codicil is properly executed, itwill re-execute the old will as of the date of the codicil so that the will is now dated withthe same date of the codicil.i. a codicil can republish a will that was previously invalid.

Johnson v. Johnson: The testator had an invalid will. Later he hand writes at thebottom of the will a clause saying that he only gives $10 to his brother. Then hesigns. The court said that this was a valid holographic codicil. The will was held tobe valid due to the codicil. That is because by republishing the will it validates apreviously invalid will. the general principle of law is that a codicil validlyexecuted operates as a republication of the will no matter what defects may haveexisted in the execution of the earlier document, that the instruments areincorporated as one, and that a proper execution of the codicil extends also to thewill. this does make sense if you go by the testators intent. The Second documenthas to be a codicil to the will, it cannot be a separate document. That is why the factthat it was on the same page is more important.

ii. look out for the effect this could have on omitted spouses and children.C. Incorporation by reference: Any writing in existence when a will is executed may be

incorporated by reference if the language of the will manifests his intent and describes thewriting sufficiently to permit its identification.1. Requirements:

a. the doc is in existence b. manifest intentc. describe the document with enough specificity to identify the document.

2. The incorporation by reference can work with republication by codicil to allowincorporation of documents not originally in existence


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a. Clark v. Greenhalge: Testator incorporated one document into her will, latershe added a bequest of a painting to a friend, and then she added twocodicils. This republished the will with the date of the codicils, allowingthe new bequest to be incorporated by reference.

D. Acts of independent significance1. This doctrine allows the courts to fill in certain blanks in the testators will by

referring to documents or act effectuated during the testators lifetime for primarily

non-testamentary motives. The documents or acts may be those executed or doneby the testator or a third person. The normal formalities are not required.a. UPC 2-512 and Cal code: acts of independent significance: A will may

dispose of property by reference to acts and events that have significanceapart from their effect upon the disposition made by the will, whether theyoccur before or after the execution of the will or before or after the testatorsdeath. The execution or revocation of another individuals will is such anevent.

b. Examplesi. it can work to identify beneficiaries: I give $ to all person whom I

employ at the time of my death.

ii. it ca work to identify the gift: I give so and so all of my furniture atthe time of my death.

E. Contracts relating to wills1. Contracts to make a will:

a. Usually testator would make an agreement with B to take care of them andin return testator will leave her house to B. What happens if testator doesnot comply? This is a breach of contract action. Wills law will operate first.The remedy usually is a constructive trust.i. constructive trust against the beneficiaries of the will.ii. give the contract beneficiary the value of the property out of the

estate.

iii. specific performance (if testator is still alive then can use courts toforce them to make a will) (quasi specific performance is when thecourt forces the estate to do something to perform a contract afterthe testator dies.) (ordering the successors to transfer the property tothe contract beneficiary.)

b. Most states require Statute of Frauds (in writing)c. A contract to take care of your spouse is ineffective because there is no

consideration due to the obligation to take care of your spouse.2. Contract not to revoke a will

a. Usually in the case of a joint (one will two people) or a reciprocal will (twopeople with reciprocal wills). What happens if 2 people have a reciprocal

will and after spouse A dies B changes his mind an leaves the residue of theestate to someone other then what they had in the reciprocal will. usuallythe argument was that there was a contract not to revoke the will. people Inthis situation need to make sure that they have a valid contract.

b. In CA you need one of three thingsi. provisions of a will stating material provisions of the contractii. an express reference in a will to a contract and extrinsic evidence

proving the terms of the contractiii. a writing signed by the decedent evidencing the contract. (Basically

just has to be in writing because this section has been repealed.)


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they decided to allow evidence of the testators personal usage ofreferring the heir.

b. Erickson v. Erickson: The testator made a will two days before his wedding.He had three kids. The will was reciprocal and left some money to his wifeand if she predeceased him the money was divided between his kids and thenew wifes kids. One of his daughters challenged the will and argued thatthe will was not valid on the basis of a statute. It says that if you write a will

and do not provide for the contingency of marriage then the will will beinvalid, this is similar to the pretermitted spouse. The mother argues thatthe will is valid because the will did provide for the contingency of themarriage. The lower court held that the will did expressly provide for thecontingency of marriage. The appeals court held that it did not. but thenconcluded that extrinsic evidence could be admitted because they dont usethe plain error will. The extrinsic evidence has to establish the testatorsintent and the fact that there was an error by the lawyer (scriveners) by

clear and convincing evidence for the court to determine that the will

provides for the contingency of marriage. The court overrules a previouscase and used the dissent in that case and agreed with the reasons in that

dissent. There were three reasons to overrule the old case, 1. there is reallyno difference between allowing extrinsic evidence for things like fraud,duress, or undue influence. In both instances the testamentary process wasdistorted by the interference of a third person who misled the testator intoexecuting the will that would not otherwise have been made. 2. the risk ofsubversion of the intent of the testator is not strong and in fact this wouldbring out the testators correct intent. 3. signing a will should only lead to astrong presumption that the will accurately represents the intentions of thetestator, and that presumption should be rebuttable with extrinsic evidenceto the contrary. Very few jurisdictions have adopted this rule. and CA hasnot. Not the law for this class on MC.

4. California Rule: look to extrinsic evidence to determine if a term isambiguous and if so then use extrinsic evidence to determine what the termmeans.Estate of Russell: Thelma Russell dies and left the residue of her estate toChester H. Quinn & Roxy Russell. This was a holographic will. She gave a$10 gold piece and her diamonds to her Niece who is the P in this case.P challenges the part of the will that was left to Roxy who was the testatorsdog. However, any grant in a will to an animal is void. Chester was arguingthat the language was that the estate was meant to go to Chester to take caseof Roxy with. There was an interpretation question in this case. The normalinterpretation is that the grant would be to Roxy and Chester to equally. The

niece argued that the court should use the plain meaning rule because this isunambiguous language. She argued that the court should not look at theextrinsic evidence. The trial court did look at extrinsic evidence anddetermined that it was intended to mean the half went Chester to take careof Roxy and he got the other half. The evidence that was admitted was anaddress book that stated that the niece should not get the residuary, also aquit claim deed intended to show that she did not want to die intestate, andevidence that Roxy go to Chester. The CA supreme court said that you canlook at extrinsic evidence to determine if the language is ambiguous. If afterthat the language of the will is susceptible to at least two interpretations,


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then the language is ambiguous. After applying this rule the courtdetermines that the will cannot reasonably be construed to make an absoluteand outright gift of the entire residue of her estate to Quinn to use theportion he found acceptable to Roxy. No words of the will give the entireresidue to Quinn much less indicate that the provision for the dog is merelyprecatory in nature.

2. Mistake v. false description

a. a court will not generally correct a mistake in a will however there is anexception for false description.

b. Arnheiter v. Arnheiter: testator dies with a will that provided that herexecutor should sell her property on 304 Harrison Avenue, Harrison NewJersey to be sold and put into trust for her nieces. The problem was that shedid not ever own that property instead she owned property at 317 Harrison.The court held that this was not a problem. While they will not reform thewill by changing the address the court will just use this principle that mereerroneous description does not vitiate (called the falsa demonstratioprinciple: an incorrect description does to destroy a gift) a grant. So thecourt just ignored the mistake and determined that without that address the

description was sufficiently to describe the property that she had owned on317 Harrison Ave. usually only used for descriptions of real property andnames.

3. You can always use extrinsic evidence to determine the validity of a will.a. Fleming v. Morrison: Butterfield wanted to sleep with this woman Mrs.

Fleming. He told her that if she slept with him he would make a will thatleaves her the entire estate. He goes to a lawyer, the will is made andButterfield signs. He has Goodrich the lawyer sign the will. B tells G thatthe will is a fake and it was made for a purpose. Later he gets two others tosign the will and does not tell them that this is a fake will. the court heldthat because one of the witnesses knew that it was a fake will, that witness

was not valid and so the will is not valid. The family argued that there wasno testamentary intent. This is a requirement for even a normal will. youcannot tell from the will that the testator did not have testamentary intent.There was no ambiguity about his intent. But the court allowed theextrinsic evidence in. Why? It goes to the validity of the will itself and notthe terms of the will.

VI. LAPSE AND ANTI-LAPSE STATUTES

A. Lapse1. Common Lay: there is a basic principle that if the beneficiary predeceases the

testator their interest lapses because you cannot give something to a dead personunless the testator specifies otherwise.

a. When the interest lapses it falls into the residue.b. If the residue lapses then it goes by intestate

2. No residue of a residue rule: There is another common law rule that when twopeople are taking the residue and one dies their half goes by intestate and not to theother residuary legatees.a. This rule has been abolished by the majority of the us jurisdictions

including CA.b. Now the other residuary legatees take the predeceased persons share.

B. Anti-lapse statutes


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1. They merely substitute other beneficiaries for the dead beneficiary if certainrequirements are met. Most only substitute the issue of the beneficiary and theyonly do it if the beneficiary is a close relative or something. This is only a defaultrule so if the testators will has words of survivorship it will preclude the anti lapsestatute.a. Where there is language of survivorship in the will the anti-lapse statue will

not take effect.

i. Allen v. Talley: Mary Shoults died with a will and she had fivebrothers and sisters at the time she made the will. in the will sheprovided that her living brothers and sisters to share and share alikeall of the property in her estate. The issue is whether she hadsurvivorship language in her will that would prevent the anti lapsestatute from taking effect. It did not have a substitute disposition butit had contrary intention because of the survivorship language.When she died only two of them were still alive. The issue of thedead siblings want their share and the two living ones argue that thetestator really meant for only living siblings to share. By the timethis case came about the state had abolished the no residue of the

residue rule. but there was an anti lapse statute that was in play thewould insure that the issue of the dead brothers and sisters wouldtake by representation. So the dead siblings share lapses and then itgoes to the surviving two.

ii. Usually language of contrary intention is to make a provision for theevent that the transferee does not survive.

b. CA 21110: This is cas anti lapse statue: if a transferee is dead when the instrumentis executed, or fails or is treated as failing to survive the transferor or until a futuretime required by the instrument, the issue of the deceased transferee take in thetransferees place in the manner provided in 240 (modern per stirpes), But theissue of the deceased transferee do not take if the will expresses a contrary intention

or a substitute disposition. Survival language of the transferor until theadministration of the estate or the probate of the will is a contrary intention.

*Further a transferee means a person who is kindred of the transferor orkindred of a surviving, deceased, or former spouse of the transferor.

- Remember this does not include the spouse.- But it would apply to a brother in law, silly.- Kindred means blood related.

Jackson v. Schultz: The testator died and left the residue to his wife to herand her heirs and assigns forever. He did not have any kids but his wife didand he took care of them until they grew up. The Anti lapse statute in thisstate, Delaware, did not cover wives, only lineal descendents or brothers

and sisters of the testator

trusts & wills_tiersma (fall 2006)

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