wills handout.pdf

Wills and Trusts

Law School Legends Professor Stanley M. Johanson

I. INTESTATE SUCCESSION A. BASIC PRINCIPLES AND TERMINOLOGY. Probate (literal translation: to prove): Court proceeding in which:

(i) it is judicially determined that the decedent left a validly executed will (or that the decedent died without a will and his intestate heirs are determined), (ii) a personal representative (called an executor if named in a will, an administrator if

appointed by the court from a statutory list of preferred next of kin) is appointed to administer the decedent's estate and wind up the decedents affairs, and

(iii) letters testamentary (if an executor) or letters of administration (if an administrator)

are issued by the court, showing the personal representatives authority to represent the estate in dealing with third parties. The probate estate does not include (and wills and the intestate succession rules do not apply to) non-probate transfersinterests that pass by right of survivorship (e.g., a joint and survivor bank account) or under the terms of a contract (e.g., life insurance proceeds or employee death benefits).

Strictly speaking, you probate the decedents will and then you administer the decedents estate.

However, the entire process is commonly referred to as the probate process, involving a probate administration. While it may not be technically correct, this terminology is widely used.

The principal duties of a personal representative are to:

(i) take possession and control of the assets that comprise the estate, (ii) give notice to creditors and pay creditors claims,

(iii) satisfy the tax authorities, and

(iv) distribute the remaining estate to the will beneficiaries or heirs.

A person who executes a will is called the testator. Persons who take by intestate succession are called heirs. Persons who take under a will are called beneficiaries (or devisees, or legatees). At common law, one devised real property and bequeathed money or personal property. This distinction is no longer made. A will can say I devise, I bequeath, I give, or I leaveall of these terms mean the same thing, and can be employed to make testamentary gifts of both real property and personal property.

WILLS AND TRUSTS LAW SCHOOL LEGENDS

Residuary estate is the estate of a testator that remains after all debts, taxes and administration expenses have been paid, and after all specific gifts and cash legacies made by the will have been satisfied. Under most wills, the residuary beneficiary is the testators preferred taker. (E.g., "I give all of the rest, residue and remainder of my estate to my wife Wendy.")

B. WHEN INTESTATE DISTRIBUTION RULES APPLY.

The intestate distribution rules (sometimes referred to as the laws of descent) apply when:

(i) decedent left no will (or decedents will was not validly executed);

(ii) the will does not make a complete disposition of the estate (resulting in a partial intestacy), or

(iii) an heir successfully contests the will on the ground of lack of testamentary capacity or

undue influence, and the will is denied probate. In several states, the intestacy rules are also involved in questions involving a pretermitted child (born or adopted after the will was executed) or an omitted spouse (testator married after will was executed.)

C. INTESTATE SHARE OF SURVIVING SPOUSE

Uniform Probate Code (original 1969 version), which has been enacted in a number of states, has a different rule depending on whether the decedent's descendants were of this marriage or of an earlier marriage. Under the original UPC, the surviving spouse's intestate share is:

Survived by spouse but not by descendants or parents: ALL.

Survived by descendants, all of whom are descendants of surviving spouse: THE FIRST $50,000 PLUS OF ANY BALANCE.

Survived by descendants, some of whom are not descendants of surviving spousethe second marriage situation: ONE-HALF.

Survived by spouse and no descendants but by one or both parents: THE FIRST $50,000

PLUS OF ANY BALANCE.

Revised Uniform Probate Code (1990 version) substantially increased the intestate share of a surviving spouse, reflecting a policy that is more in line with the dispositions that most spouses make if they write wills. The Revised UPC provisions also reflect that divided families are encountered more frequently in our society.

Survived by spouse but not by descendants or parents: ALL.

Not survived by descendants, but survived by a parent: THE FIRST $200,000 PLUS OF ANY BALANCE.

Survived by descendants, all of whom are descendants of surviving spouse, and surviving spouse has no descendants from an earlier marriagethe one-marriage situation: ALL.

Survived by descendants, all of whom are descendants of surviving spouse, but surviving spouse has one or more descendants who are not descendants of the decedent: THE FIRST $150,000 PLUS OF ANY BALANCE.

Survived by descendants, some of whom are not descendants of surviving spouse: THE FIRST $100,000 PLUS OF ANY BALANCE.

LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 3

1. Herman and Winnie are married, and they have two children (Al and Betty). Winnie has a

child Carol) by her first marriage.

H-1 Winnie Herman Carol Al Betty a. If Herman dies intestate survived by Winnie and the three children, what is Winnies

intestate share: Under the original (1969) Uniform Probate Code? Under the Revised (1990) Uniform Probate Code? b. If Winnie dies intestate survived by Herman and the three children, what is Hermans

intestate share: Under the original (1969) Uniform Probate Code? Under the Revised (1990) Uniform Probate Code? D. INHERITANCE BY DESCENDANTS.

The Probate Codes of a few states use the term "issue" throughout. The terms issue and descendants are synonymous, and include lineal descendants (children, grandchildren, etc.) by blood or adoption. In making a distribution among descendants, the literal translation of per stirpes is by the roots, and means one share for each line of descendants. The literal translation of per capita is by the head, and means one share for each person.


2. Martha, a widow, dies intestate, survived by the family members listed below. What intestate distribution?

Martha Al Ben Carol Donna C-1 C-2 D-1 D-2 D-3

At common law, and in a small number of states today, the distribution rule is strict per stirpes (also called classic per stirpes), under which the shares for each line of descendants are always divided at the first generational level, regardless of whether there are any living takers at that level, and then one share for each family line. Thus in the above family tree:

Al: ________ Ben: _______ C-1 and C-2: ________ D's three children: ________

The distribution rule under the original UPC and in most states is modern per stirpes, usually described as per capita with representation ("per capita at the first level, then by representation"). Under this distribution scheme, you cut the shares at the first generational level at which there are living takers, and then one share for each family line.

Al: ________ Ben: _______ C-1 and C-2: ________ D's three children: ________

The distribution rule under the Revised UPC (also adopted in several non-UPC states) is per capita at each generation. Under this rule, you make the initial division of shares (with one share for each line of descendants) at the first generational level at which there are living takers. Each living descendant in that nearest generation takes one share. Shares of deceased persons at that generational level are combined and then divided equally among the takers at the next generational level, and so on. As a result, persons in the same degree of kinship to the decedent (e.g., grandchildren who are first cousins) always take equal shares. Under this distribution rule, the shares would be:

Al: _________ Ben: _________ C-1 and C-2: __________ D's children: __________ E. INTESTATE DECEDENT NOT SURVIVED BY SPOUSE OR DESCENDANTS (1) All to parents or to surviving parent (majority rule). In nearly all states, collateral kin

(brothers and sisters) never inherit if an intestate decedent is survived by a parent.) (2) If not survived by parents, to descendants of parents. When inheritance is by collateral kin

(e.g., brothers, sisters, and the descendants of deceased brothers and sisters), the states apply the same distribution rules (either strict per stirpes, or per capita with representation, or per capita at each generation) that they apply to inheritance by descendants.


(3) The UPC and most states have abolished the distinction made at common law between collateral kin of the whole blood and of the half blood: Half-sisters (sisters who shared one common parent with the decedent) take the same share as sisters of the whole blood.

(4) If not survived by parents or issue of parents: to maternal grandparents (or surviving

grandparent), or if neither maternal grandparent is living, their descendants; to paternal grandparents (etc. etc.) in same manner. If no maternal grandparents or their descendants, all to paternal grandparents or their descendants (and vice versa).

(5) While most states impose no limit on the degree of kinship needed to take as an heir, the

Uniform Probate Code and several non-UPC states have enacted so-called "no laughing heir" statutes: There is no inheritance by kin more remotely related than grandparents or descendants of grandparents. Instead, the estate escheats to the state.

F. ADOPTED CHILDREN. Adopted children and their descendants have full inheritance rights

from the adoptive family (and vice versa), and are treated in all respects the same as natural children.

General rule: Once a child has been adopted by a new family, the child has no inheritance rights from the natural parents or their kin. (This is consistent with the law and policy of most states, under which adoption records are sealed, and an adopted child has no right to learn the identity of her natural parents.) Exception: Where child is adopted by spouse of a natural parent. (E.g., Clyde's father dies; mother remarries, and second husband adopts Clyde. Clyde has inheritance rights from natural mother and adoptive fatherand (in nearly all states) from the deceased natural fathers kin as well.)

G. NONMARITAL CHILDREN. Constitutional litigation in 1970s and 1980s expanded the rights

of nonmarital children. As a result, in most states a nonmarital child can inherit from natural father if [the acronym is PAPfor Pappy]:

-- Paternity suit: The man was adjudicated to be the father in a paternity suit; or -- Acknowledged paternity: The man acknowledged in writing that he was the father; or -- Probate proceedings: After the man's death, he is proved to have been the father of the child in the probate proceeding by clear and convincing evidence.

H. LIFETIME GIFTS TO HEIR OR WILL BENEFICIARY 3. Mary gives Blackacre (worth $60,000) to her son Al on Al's 35th birthday, orally telling her

other sons (Ben and Chris) that they will receive similar gifts when they reach 35. Mary dies intestate two years later without having made gifts to Bill and Chris. She left an estate valued at $300,000; what distribution?

Common law: A lifetime gift to a child (or other descendant) was presumptively an advancement (advance payment) of the child's intestate share, to be taken into account in distributing the intestate estate at death. (Presumption was that a parent would want to treat all children equally.) Thus if Al wanted to share in the inheritance, unless the advancement presumption were rebutted it would be treated as a [$300,000+ $60,000 =] $360,000 estate to be divided three ways. Each child's share would be $120,000, with Al


already having received $60,000 of his share. (In most states, the advanced property is valued at its date-of-gift value for this purpose.)

UPC and majority rule: A lifetime gift to an heir is not an advancement unless (i) declared as such in a _______________________________________ by donor; or (ii) acknowledged as such in a ____________________________________ by donee. Therefore, under the majority rule distribute Marys estate:

In most states, the same rules apply to lifetime gifts made to a beneficiary named in a previously executed will (called the doctrine of satisfaction of legacies), as where a testator executes a will bequeathing $25,000 to her nephew Norman, and thereafter gives Norman $10,000 cash.

UPC and majority rule: A gift to a beneficiary named in an earlier will is not treated as in satisfaction of legacy unless

(i) declared as such in a contemporaneous writing by the donor, or (ii) acknowledged as such in writing by the donee, or

(iii) the will provides for reduction of legacies by any lifetime gifts.

Since there is no writing, we ignore the lifetime gift. Norman takes the full $25,000 under the will.

I. DISCLAIMER BY HEIR OR BENEFICIARY 4. Joe's will bequeaths his $1,500,000 estate "to my children in equal shares." Joe is survived

by two children: Sue and Bob. Sue, a partner in a large New York law firm who has two children, wants to disclaim her interest in her father's estate. What must Sue do to make an effective disclaimer?

All states recognize that no one can be compelled to be a beneficiary or heir against her will. An intestate heir, will beneficiary, beneficiary of a life insurance policy or employee benefit plan, or any other interest in property can disclaim the interest, in whole or in part. A disclaimer also can be made on behalf of a minor or incapacitated person by a guardian, or the personal representative of a deceased person. A disclaimer, once made, is irrevocable. To be a valid disclaimer:

#1. Must be in writing, signed and (in most states) notarized. #2. Must be filed within _________________* after the decedent's death.

* Under the Uniform Probate Code, a disclaimer must be made within a

reasonable time. However, to be valid for tax purposes a disclaimer must be made within 9 months, and most disclaimers are made for tax purposes.


[For irrevocable inter vivos trusts, disclaimer must be made within 9 months of the transfer; the trust is read as through the disclaimant was dead when trust was created.

#3. Disclaimer can be partial ("I disclaim one-half of the interest bequeathed to me").

#4. A beneficiary or heir cannot disclaim after accepting an interest or its benefits. (Essentially an estoppel principle.)

#5. Disclaimant cannot exercise dominion by attempting to direct who takes by reason of

the disclaimer. ("I disclaim, and I want the interest to go to my husband Horace.") If Sue makes an effective disclaimer, how should T's estate be distributed?

J. DEATHS IN QUICK SUCCESSION 5. Mother and Sonny, riding in a car, are hit broadside by a train. Both die instantly. Mother

did not leave a will. For purposes of distributing Mother's intestate estate, is Sonny an heir....

________ If the controlling law is the Uniform Simultaneous Death Act [USDA]?

Uniform Simultaneous Death Act: When title to property depends on order of deaths and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived (absent contrary provision).

Intestacy: As though the intestate survived and the heir predeceased. Wills: Suppose, instead, that Mother left a will devising "all my property" to Sonny.

Mother's estate is distributed as though the testator survived and the beneficiary predeceased. (This would invoke the lapsed gift doctrine and the anti-lapse statute, discussed infra.)

Insurance proceeds, Individual Retirement Accounts [IRAs], etc.: As though insured [or IRA account owner] survived and beneficiary predeceased.

If joint tenants with right of survivorship or tenants by the entirety die simultaneously: is distributed through As estate as though A survived B, and is distributed through Bs estate as though B survived A. Reason: Simultaneous deaths prevent operation of right of survivorship. In effect, property passes as though a tenancy in common were involved.

5a. Same facts and same tragic accident except that, while Mother was pronounced dead at the

scene of the accident, Sonny died at a nearby hospital 71 minutes later. Mother did not leave a will. For purposes of distributing mother's intestate estate, is Sonny an heir....

________ If the controlling law is the Uniform Simultaneous Death Act?


________ If the state has enacted the Uniform Probate Codes 120-hour rule?

The 120-hour rule also applies to wills. A will beneficiary who fails survive the testator by 120 hours is deemed to have predeceased the testator (absent contrary provision). This would invoke that lapsed gift rule and anti-lapse statute (discussed infra).

II. EXECUTION OF WILLS

A. REQUIREMENTS FOR A VALIDLY EXECUTED WILL. To have capacity to make a will, the testator (T) must be 18 years old. The rules governing will

execution vary from state to state. The Uniform Probate Code (UPC) requires: #1. Signed by the testator (or someone at T's direction and in her conscious presence

proxy signature); #2. Testator must sign the will (or acknowledge his earlier signature or acknowledge the

will as his will) in each witnesss presence; #3. Two attesting witnesses, each of whom witnessed either Ts signing of the will or T's

acknowledgment of his earlier signature or of the will; and #4. Witnesses must sign within a reasonable time after witnessing either T's signing of the

will, or Ts acknowledgment of her earlier signature or of the will. A number of states additionally require that #5. Each witness must sign the will in the testators presence. (The UPC

notwithstanding, this is the majority rule.) A few states impose one or more of the following additional requirements: -- that the testator sign "at the foot or end" of the will. -- that the witnesses know they are witnessing a will, as distinguished from some other

document (called the "will publication" requirement). -- that witnesses sign in each other's presence. Codicil (later amendment or supplement to a will) must be executed with the same formalities. 6. Tom types a will that leaves all of all his property to his sister Sue and his neighbor Nell in

equal shares. The will, which names a friend as executor, contains no attestation clause; below the signature line for the testator the will simply provides "Witnesses" and has two signature lines. Tom takes the will across the street to his neighbor Nell and asks Nell to "witness my will." Nell signs on the first witness line, then Tom signs; Tom's signature is barely legible because of an arthritic condition. Tom then takes the will to his neighbor Oscar and asks: "Would you mind witnessing this legal document for me? It needs two signatures besides mine." Tom proffers the will with his signature showing. Oscar signs, thinking he is witnessing a power of attorney. After Toms death the will, which is undated, is offered for probate. Should it be admitted?


_______ Does it matter that the will is not dated? _______ Does it matter that one of the witnesses signed before Tom signed? The exact order of signing is not critical when execution (will signing) ceremony is _________________________________________________________________

(But where T forgot to sign when witnesses signed, and added his signature three days later in the same witnesses' presence, will denied probate; not a contemporaneous transaction. Witnesses are attesting witnesses and must attest to T's signature when they sign.)

_______ Does it matter that Tom's signature is barely legible? _______ Does the fact that Nell is a beneficiary invalidate either the will or the bequest to Nell?

Minority rule: Interested witness situation doesn't affect validity of a will, but witness-beneficiary loses legacy (subject to exceptions). However, the UPC and most states have abolished the interested witness rule. "The signing of a will by an interested person does not invalidate the will or any provision of it."

________ Does it matter that Oscar did not know that he was witnessing a will? (majority rule) ________ Does it matter that Nell and Oscar didn't sign in each other's presence? (majority rule) ________ Does it matter that Toms will did not contain an attestation clause?

Attestation clause, which appears below the testator's signature line and above the witnesses' signature line, recites the elements required for due execution: "On the above date testator declared to us that the foregoing instrument was her will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We now sign the will as attesting witnesses in testator's presence and in the presence of each other."


Value of an attestation clause: such a clause is:

An attestation clause can be important in two situations:

(1) Witness with bad memory. "Probate of a will does not turn on memory of the attesting

witnesses." (2) Hostile witness.

Self-proving affidavit procedure now available in nearly all states recognizes that most probates are harmonious, nonlitigious affairs in which no one is challenging the validity of the will's execution. Can be executed at any time after the will is signed, but invariably is signed at the same ceremony. T and witnesses sign will, then T and witnesses execute sworn affidavit before notary public. Affidavit recites statements witnesses would testify to in open court (T was over age 18; witnesses signed in T's presence; in witnesses' opinion T was of sound mind, etc.). Unlike an attestation clause (which merely corroborates the witnesses' testimony), the affidavit serves the same function as a deposition or interrogatory. It is a total substitute for live testimony of the attesting witnesses in open court.

7. Tillie downloads a will form from the Internet, and carefully fills in the blanks by typing in

the names of the beneficiaries, executor, etc. After she has completed the form, Tillie asks Norman, a notary public, to assist her in signing the will. Tillie signs; then Norman signs and affixes his notarial seal, overlooking the fact that there are two signature lines for witnesses. Tillie dies two years later.

NO Can Tillies will be admitted to probate in most states, given that it has only one witness?

YES Can Tillies will be admitted to probate in a state that has enacted the Revised Uniform Probate Code?

Under the Revised UPCs dispensing power statute (also known as the harmless error statute), the probate judge can excuse full compliance with the formalities required for execution of a will if there is clear and convincing evidence that the testator intended the document to be her will.

B. WHAT CONSTITUTES PRESENCE? A number of states require that the witnesses must sign

in testator's presence, and the UPC requires that the testator either sign the will or acknowledge his signature or the will in each witness's presence. What constitutes "presence"?

8. T is confined to a hospital with a contagious disease, his bed hidden by a heavy vinyl screen.

The will is handed to T at a point when the two witnesses are standing in the doorway to the room, not in T's line of sight because of the screen. From behind the screen T says, "This looks all right; where do I sign?" After T signs the will, a nurse carries the will to the doorway where the two witnesses sign under the attestation clause; T cannot see either of them sign. Was the will validly executed?

Under the line of sight ("scope of vision") test (minority rule): NO Witnesses must be in testator's line of sight. Testator does not have to see the witnesses sign, but the witnesses must be within the uninterrupted range of testator's vision when they sign, so that testator could have seen them sign if he had looked. (Swivel chair case: If testator,


staring out window when witnesses signed on a table behind her, had turned around in her swivel chair, she could see the witnesses.)

Under the conscious presence test (majority rule): YES It is not necessary that testator should actually be able to see the witnesses when they sign. They are in his presence whenever he is so near to them that he is conscious of where they are and what they are doing, and he could see them with a slight physical effort on his part. (e.g., by peeking around that vinyl screen.)

BUT where (after testator and W-1 signed) the attorney took the will to an adjoining room where W-2 signed it, W-2 did not sign in testator's presence under either test.

9. Mel was in a hospital's Intensive Care Unit, having suffered a heart attack. A will was prepared for Mel and was brought to the hospital room along with two of Mel's neighbors who were to serve as witnesses to the will. The lawyer read the will aloud to Mel, who said "That's just fine; where do I sign?" Mel signed the willbut immediately thereafter suffered a massive seizure and collapsed back on the bed. Paramedics rushed in and, in the presence of the stunned neighbors, worked alongside two nurses in administering CPR to Melto no avail. About seven minutes later, Mel was pronounced dead. At that point, the lawyer said to the neighbors, "well, that's too bad; but as long as you're here you might as well sign the will as witnesses," which they did. Is Mel's will admissible to probate?

NO Majority rule: Witnesses must sign in the testator's conscious presence. ______ Uniform Probate Code: C. ATTORNEY LIABILITY TO WILL BENEFICIARIES FOR NEGLIGENCE 10. In a state that requires that the attesting witness must sign the will in the testators presence,

Larry Lawyer prepares a will for Tina and supervises the will's execution. The will is signed by two witnesses, but one of them did not sign the will in Tina's presence. As a result, the will is denied probate, and Tina's estate passes by intestacy to Tina's heirs. Do the intended will beneficiaries have a cause of action against attorney for negligence?

Minority rule: NO because there is no privity of contract. Under the minority rule, an attorney's duty runs only to: Majority rule: _______ because ______________________________________. Under the majority rule, attorney's duty also runs to:


D. HOLOGRAPHIC WILLS 11. Winkie writes a document in her own handwriting that reads: "July 24, 1998. I, Winkie

Waters, declare that this is my last will. I leave all my property to the Morris Crippled Children's Home." The writing is not witnessed; is it admissible to probate?

"The UPC and about half the states recognize holographic willshandwritten and signed but unwitnessed wills. In these states, upon proof that the will was wholly in Winkies handwriting, it is admissible to probate as a holographic will."

But all states that allow holographic wills require that such wills be signed by the testator. Was this will signed by Winkie???

"However, many states do not recognize holographic wills. Except (in a few states) for persons serving in the armed forces or mariners at sea, all wills must be in writing and attested by two witnesses. In those states, the handwritten, unwitnessed document is not admissible to probate."

Important note: If the facts of ANY Wills question include a handwritten letter, note or memorandum signed by the testator, you must discuss majority and minority rule (as above); whether it can be given effect as a holographic will (or holographic codicil to an attested will).

E. CONDITIONAL WILL 12. Ted writes a will that is properly signed and witnessed: "I am going on a mountain-climbing

expedition to the Himalayas. If anything happens to me on the trip, I leave all of my property to my good friend, Alice Adams." Ted climbs Mt. Everest that summer, returns from the trip in July, and dies three years later without having changed his will. Does Alice take Ted's estate under the will?

Was this a conditional will, meaning that probate should be denied because the condition did not occur (i.e., nothing happened to Ted on his trip)?

Or did Ted's reference to the dangerous journey he was about to undertake merely reflect the motive or inducement for making a will? (i.e., the dangers he faced on the trip prompted him to think of the possibility of death and the need for a will.)


III. REVOCATION OF WILLS A. WHAT CONSTITUTES A VALID REVOCATION. A will can be revoked only:

(1) by a subsequent testamentary instrument, executed with appropriate formalities, or (2) by physical act (burning, tearing, canceling, obliterating, or other act of destruction).

Under the Revised UPC, the dispensing power (harmless error) statute applicable to the execution of wills also applies to attempted revocations. The probate court can relax the statutory requirements, if there is clear and convincing evidence that the testator intended to revoke her will.

13. Hobie's will is found among his papers after his death. At the bottom of each page of the

three-page will is written, in T's handwriting, "This will is VOID. Hobie Gates." YES Valid revocation by subsequent instrument if the state recognizes holographic wills?

It's in his handwriting and signed; doesn't have to be on a separate sheet of paper.

YES Valid revocation by subsequent instrument if the state has enacted the Uniform Probate Codes dispensing power statute? We have clear and convincing evidence that Hobie intended to revoke his will.

________ Valid revocation by subsequent testamentary instrument if the state does not recognize holographic wills (and has not enacted the UPCs dispensing power statute)? ________ Valid revocation by physical act? ________ Suppose Hobie had crossed out his signature with an X. Revocation by

physical act? 14. The executed copy of Adam's will is in his safety deposit box; a xerographic copy showing

all of the signatures is in Adam's desk at home. Adam destroys the xerox copy with the intent to revoke his will. Valid revocation by physical act?

________ Physical act must be:


15. Ted calls his attorney on the phone and tells him, "Revoke my will. I'll come down to your

office next Monday and write a new one, but for now I don't want that old will." The attorney gets Ted's will out of the file, puts a large X across each page, and then tears the will into twelve pieces. He tells Ted, "I have destroyed your will. Be sure to come in on Monday. We sure wouldn't like to have you die intestate. Heh, heh." Ted is struck by lightning and is killed on Sunday. Was Ted's will validly revoked?

________ Revocation by physical act by another person (proxy revocation), must be: (1) ______________________________ and (2) ______________________________ 15a. But how can Ted's will in #15 be probated if it was destroyed??? ______________________________________________________________________ (1) Proof of due execution (testimony of attesting witnesses) as in any case. (2) Cause of will's nonproduction must be established. (Must overcome

presumptions as to revocation set out below.) (3) Contents must be substantially proved by copy of will or by testimony of

witnesses who have read the will or heard it read. B. PRESUMPTIONS REGARDING REVOCATION.

(1) Where a will, last seen in testator's possession or under his control, is not found after death, presumption is that the testator revoked the will by physical act.

(2) Where a will, last seen in testator's possession or control, is found mutilated after testator's death,

presumption is that the testator did the mutilating (i.e., revocation by physical act).

(i) Neither presumption arises if the will was last seen in the possession of someone adversely affected by its contents. [Recent case: Shortly after T's death, desk where will was located was "tidied up" by one adversely affected by the will.]

(ii) Evidence is admissible to rebut the presumption of revocation where will cannot be

found or is found in damaged condition. [E.g., will destroyed in fire that killed testator.]

Where a will is executed in duplicate (two signed and witnessed copies), both copies must be accounted for, or the reason for not producing both copies must be explained.

16. Tim executes "my last will." Two years later, Tim executes another "my last will." The

second will does not contain language of revocation, and does not even mention the earlier will.

To the extent possible, you read the two instruments together. The second "last will" is treated as a codicil to the first will, and revokes it only to the extent of inconsistent provisions. But if the second will is wholly inconsistent with the earlier will (the first will gives "all my property to Al" and the second gives "all my property to Betty," the first will is revoked by implication.


Revocation of codicil to a will does not revoke the will, and (majority rule) the part of the will that was modified or revoked by the codicil is restored and takes effect as though the codicil had never been written.

C. DEPENDENT RELATIVE REVOCATION

16. Teresa executes a will (Will #1) that bequeaths her estate in trust: income to daughter Sally for life, remainder to Sally's children. Teresa later types out a will (Will #2) that purports to revoke Will #1 and leaves her estate outright to Sally. However, Will #2 is signed by only one witness. Saying "this will is no good now," Teresa destroys Will #1. Teresa dies; she is survived by Sally and by her son Jack, whom she intended to disinherit. What do we do, given that the second "will" is not a will (not validly executed)?

DEPENDENT RELATIVE REVOCATION should be applied by the court. "DRR" permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of another disposition (here, Teresa's mistaken belief that she had validly executed Will #2). Effect would be to disregard the revocation of Will #1 (the will that was revoked based on a mistake of law) and permit its probate. Rationale: It is better to disregard the revocation and let Teresa's estate pass into a trust for Sally and her children than to have half of her estate pass by intestate distribution to Jack, whom Teresa intended to disinherit.

DRR is sometimes called the second best solution doctrine. [The best solutiongiving effect to Teresa's intent by probating Will #2isnt possible because it was not properly witnessed.] The doctrine should be applied only if by disregarding the revocation we come closer to what the testator tried but failed to do than would an intestate distribution. If Will #1 said "outright to Sally" and the improperly witnessed Will #2 said "outright to Hobie Gates" and the other facts were the same, DRR would not be applied. T's revocation of Will #1 (in effect, "I do not want Sally to take") would be independent of her intent to make a new will in favor of Hobie. To disregard the revocation of Will #1 would defeat T's intent. On these facts, the conventional rules would be applied and an intestate distribution would be made.

But if we disregard the revocation of Will #1 because the court decides to apply DRR, how can we probate that will when Teresa has destroyed it??? _______________________________.

D. CHANGES ON FACE OF WILL AFTER IT HAS BEEN SIGNED AND WITNESSED

18. Elsie's typewritten will makes a number of legacies, including:

"10. I give the sum of $5,000 to my nephew, Hobie Gates."

"11. I give the sum of $2,000 to my niece, Susan Slade.

Elsie decides to make some revisions in her will without the assistance of an attorney. Using a marking pencil, she deletes clause 10 and strikes the $2,000 in clause 11. Using a ball point pen, Elsie writes in $5,000 above the crossed out $2,000, and initials and dates the margin alongside these changes. Elsie dies three years later. What is the effect of these changes on the face of the will?


________ Was the legacy to Hobie Gates validly revoked? (Majority rule)

"A few states (Illinois, New York, Texas) do not recognize partial revocation by physical act. However, in most states and under the Uniform Probate Code, partial revocations by physical act are valid."

________ Does Susan get the $5,000 legacy? (Overwhelming majority rule)

Words added to a will after it has been signed and witnessed are:

But under the Revised Uniform Probate Code (that harmless error or dispensing power statute once again), the answer is YES. Susan takes the $5,000 because we have clear and convincing evidence that Elsie intended to modify the will by making the alteration.

________ When Elsie crossed out the "$2,000" before writing in "$5,000," she revoked

the $2,000 legacy by physical act. Is Susan nonetheless entitled to the $2,000?

________ Suppose that Elsie, after crossing out the $2,000, writes in "$500" above it.

Does Susan get the crossed-out $2,000 under dependent relative revocation?

[What was Elsie telling us when she crossed out "$2,000" and wrote in "$500"?] ________ Suppose Elsie crossed out "$2,000" and wrote in "$5,000" immediately before

the will was signed and witnessed. Are the changes valid?

IV. WILL BENEFICIARY DIES DURING TESTATOR'S LIFETIME A. LAPSED GIFTS AND ANTI-LAPSE STATUTES

19. Tom executes a will that provides: "I devise Blackacre to my son Sam, and I leave my residuary estate to my sister Mary." Sam dies two years later, survived by his wife Wendy and his son Junior. Sam leaves a will that devises "all my property" to Wendy. Tom died two months ago, survived by Sams wife Wendy, Sam Jr., and Toms sister Mary. Who takes Blackacre?

a. When a will beneficiary predeceases the testator, the gift _____________________


b. Unless the gift is saved by the state's anti-lapse statute.

These statutes vary in the scope of cases to which they apply. Some anti-lapse statutes (e.g., Illinois) are very narrow in their operation, and apply only when deceased beneficiary was a child or other descendant of the testator. The UPC anti-lapse statute applies when the predeceasing beneficiary was a grandparent or descendant of a grandparent of the testator. Several statutes are much even broader, and apply when the predeceasing beneficiary was a relative of the testator (e.g., Massachusetts), or a relative of the spouse or former spouse of the testator (e.g., California).

The predeceasing beneficiary must have been within the scope of the statute, AND must have left descendants who survived the testator. c. Therefore, Blackacre, devised to son Sam, passes to: d. But what of the fact that Sam left a will devising "all my property" to Wendy???

(Doesn't the anti-lapse statute save the gift for the deceased beneficiary's estate?) e. What if Sam was not survived by descendants, meaning that the anti-lapse statute

doesn't apply; who would take Blackacre? If a bequest or devise lapses and the anti-lapse statute does not apply, the lapsed gift: f. Suppose the will gave Blackacre "to my son Sam if he survives me." ________ Would the anti-lapse statute apply in favor of Junior (majority rule)? B. 120-HOUR RULE 20. In a state that has enacted the UPCs 120-hour rule, Tim's will provides: "I give all of my

Microsoft common stock to my sister Sarah, and my residuary estate to my mother Macree." Tim and Sarah are fatally injured an automobile accident. Tim is pronounced dead at the scene of the accident; Sarah dies two days later. Sarah is survived by her daughter Donna and her mother; Sarah leaves a will that devises "all my property" to the Red Cross. Who takes the Microsoft stock under Tim's will?

________ Does the 120-hour rule apply to wills?


A will beneficiary who fails to survive the testator by 120 hours is treated as if he predeceased the testator (absent contrary will provision).

Therefore, the Microsoft stock passes:

20a. Same facts as in #20, except that Tim's will provides: "I bequeath all of my Microsoft stock to my sister Sarah if she survives me." Who takes the AT&T stock? ________ Does the 120-hour rule apply (majority rule)?

If a will contains language dealing explicitly with simultaneous deaths, deaths in a common disaster, or requires that the devisee survive the testator in order to take, 120-hour rule DOES NOT APPLY.

C. LAPSE IN RESIDUARY ESTATE SURVIVING RESIDUARY BENEFICIARIES RULE 21. "I bequeath my residuary estate in equal shares to my good friend Hobie Gates, my neighbor

Bill Baker, and my son Charlie. I intentionally make no provision for my son Stephen, as I have not seen him for fifteen years." Hobie predeceases T, leaving a child (Hobie Jr.) who survives T. T, a widower, is also survived by Baker, Charles and Stephen. Who takes the residuary estate?

________ Does the anti-lapse statute apply in favor of Hobie Jr.?

Who takes Hobie's one-third share of the residuary estate, then?

If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the other residuary devisees take the entire residuary estate, in proportion to their interests in the residue (absent contrary will provision).

21a. What if, in #21, it was T's son Charlie who predeceased T, leaving a child (Junior) who survived T? Hobie Gates and Bill Baker survived T. Who takes Charlie's share of the residuary estate?

The anti-lapse statute ______________________________ the "surviving residuary beneficiaries" rule.

D. CLASS GIFTS 22. Ted's will devises Blackacre "to the children of my good friend, Joe Barnes," and devises his

residuary estate to his wife Rose. At the time the will is executed, Joe has two children: Andy and Bill. After the will is executed but before Ted's death, another child (Carol) is born


to Joe, and Andy dies survived by a son, Andy Jr. Then Ted dies and his will is admitted to probate. Eighteen months later Joe has another child, Donny. Who owns Blackacre?

Andy?

Class gift rule of construction: In a gift by will to a class of persons ("children," "brothers and sisters," etc.) if a member of the class predeceases the testator, the CLASS MEMBERS WHO SURVIVE THE TESTATOR TAKE (absent a contrary will provision). Basis: testator was "group-minded" in making the gift to the class and wanted this group and only this group to share the property. [You read the will, and determine the takers of the class gift, as of testator's death.]

Compare gifts to individuals: Suppose Ted's will devised Blackacre "in equal shares to Andy, Bill and Carol, the children of my good friend Joe Barnes." Andy predeceases Ted. The one-third share bequeathed to Andy lapses, and falls into the residuary estate as undisposed-of property. The residuary beneficiaries would own a share of Blackacre along with Bill and Carol.

Subject to: possible application of the anti-lapse statute. E.g., if the disposition were "to the children of my son, Joe Barnes," since the beneficiary who predeceased the testator was within the degree of relationship covered by the anti-lapse statute, and since he left a child who survived the testator, Andy Jr. would take under the anti-lapse statute. The class gift rule gives way to the anti-lapse statute when the predeceasing class member is within the degree of relationship called for by the anti-lapse statute.

Why is Donny excluded from sharing in the gift, when he's a child of Joe Barnes???

Rule of convenience ["class closing" rule]: Rule of construction used to define the takers of a class gift. The class is closed, meaning that later-born class members do not share in the gift, when some class member is entitled to a distribution. This is done in order to determine the minimum share of each class member, so a distribution can be made without the necessity of rebate. It's called the Rule of Convenience because any other result would be inconvenient.

Outright gift by will: the class closes at T's death.*

* Subject to gestation principle. Common law presumption: 280 days from conception to birth

V. CHANGES IN FAMILY AFTER WILL IS EXECUTED A. TESTATOR MARRIES AFTER WILL IS EXECUTED 23. John executes a will that devises Blackacre (valued at $100,000) to his son Sam and his

residuary estate to his sister Sue. A year later, John marries Marsha; John dies ten months later, leaving a $600,000 estate (which includes the value of Blackacre). John is survived by Marsha, Sam, and his sister Sue. Who takes John's estate?

Under the omitted spouse statute found in many states, marriage following execution of will: Omitted spouse takes _______________________________


UNLESS:

(i) It appears that omission was intentional; or

(ii) provision was made for the spouse by transfers outside the will and it is shown that the transfers were intended in lieu of testamentary gifts by testator's declarations, by amount of the transfer, or otherwise. [E.g., John named Marsha as beneficiary of a $100,000 life insurance policy; or as beneficiary of a revocable trust.]

23a. Consider the same facts, except that the above events took place in a jurisdiction that has enacted the Revised Uniform Probate Code. Under the Revised UPC, the new spouse is entitled to receive an amount equal to an intestate sharebut only as to that portion of the estate not devised to testator's children from an earlier marriage; i.e., children who were born before the marriage (or their descendants) and who are not the surviving spouses children. Thus:

$600,000 Johns estate -100,000 value of Blackacre bequeathed to son Sam $500,000 amount subject to Marshas share as omitted spouse

Reviewing the Revised UPCs intestate distribution rules (see p. 2), Marsha would be entitled to:

$100,000 first $100,000John was survived by descendants not Marshas descendants +200,000 plus of balance $300,000 Marshas share as omitted spouse

The remaining estate (property worth $200,000) would pass under the wills residuary clause to sister Sue.

B. TESTATOR IS DIVORCED AFTER WILL IS EXECUTED 24. Hank is married to Wendy, who has a child (Wookie) by her first marriage. Hank writes a

will that devises Blueacre to Wendy, and the rest of his estate to his sister Sue. The will names Wendy as executor "if she is able; otherwise my brother Sam is to serve as executor." Two years later Hank and Wendy divorce; then Hank dies without having changed his will.

Who takes Blueacre? ____________________________________ Who serves as executor? _________________________________

A final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse. The will is read and the estate is distributed (and fiduciaries are named) as though former spouse predeceased the testator.

________ But doesn't the anti-lapse statute apply in favor of Wendys child Wookie, then?


But if the couple divorces and then remarries, so that W is H's wife at death, she takes under the will. The statute operates to revoke gifts and appointments only if they are divorced at testator's death.

C. TESTATOR HAS CHILD AFTER WILL IS EXECUTED -- "PRETERMITTED CHILD"

25. When he made his will, Tank and his wife had one child: Alvin. After Tank made the will he and his wife adopted a child: Billy. Tank died survived by his wife, Alvin and Billy. His will left two-thirds of his $260,000 estate to his wife and the other one-third to a sister. What rights if any do the children have in this estate and why?

Alvin (alive when the will was executed):

Unless [says UPC] omission of the child was not intentional but was by accident or mistake. [E.g., T mistakenly thought Alvin was killed in Viet Nam. Statute applies only to mistake as to child of testator. If he mistakenly thought his brother was killed in Viet Nam, UPC statute does not apply.]

Billy? Pretermitted child (born or adopted after the will was executed) takes:

Unless it appears from the will (no extrinsic evidence) that omission was intentional.

25a. Same facts, except that two years after adopting Billy, Tank executes a codicil to his will that names Second Bank rather than First Bank as executor.

Under the doctrine of republication by codicil, the will speaks (is republishedis deemed to have been executed) on the date of the last codicil thereto. Billy is treated as having been born before the will was executed, and has no rights as a pretermitted child.

VI. PROBLEMS ASSOCIATED WITH TYPES OF TESTAMENTARY GIFTS Specific devise or bequest: "I devise Blackacre to my son John." Demonstrative legacy: A general amount from a specific source. "I bequeath $25,000,

to be paid from the proceeds of the sale of my Shell Oil stock, to Sally."

General legacy: "I bequeath the sum of $10,000 to my nephew Ned."

Residuary gift: "I give all the rest, residue and remainder of my estate to Betty."

Intestate property: If a partial intestacy because the will, poorly drafted, does not contain a residuary clause.


A. ABATEMENT OF LEGACIES TO PAY DEBTS AND EXPENSES

What happens when there are so many claims against the estate that there are not enough assets to cover all of the gifts made by the will? ("Abatement" problem.) Absent contrary provision, debts and expenses are first paid out of:

(1) intestate property, if a partial intestacy for some reason; (2) then out of residuary assets,

(3) then out of general legacies, and finally

(4) out of specific bequests.

Within each category, gifts abate pro rata; no distinction is made between real and personal property. (Nearly all states have abolished the common law rule under which personal property was sold off before any real property was touched.)

Under the UPC and in most states, demonstrative legacies are treated the same as specific bequests (and thus last to be abated) to the extent of the value of the specified property, and as a general legacy to the extent of any excess. If (e.g.,) the will made a bequest of $25,000, to be paid from the proceeds of the sale of my Shell Oil stock, to Sally," but the Shell stock was only worth $16,000 at testators death, for abatement purposes it would be treated as a specific bequest as to $16,000, and as a general legacy as to $9,000.

B. PRO RATA APPORTIONMENT RULE GOVERNS DEATH TAXES 26. Counting life insurance, Ted has a $2,000,000 estate (net of expenses and debts). Ted's will

bequeaths Blackacre (worth $400,000) to his son Al, $200,000 to his church, and his residuary estate ($1,200,000 after debts and expenses) in trust: Income to Ted's daughter Betty for life, remainder to Betty's children. Ted was the insured under a $200,000 life insurance policy; the proceeds are paid in a lump sum to Ted's sister Carol. Allowing for a $200,000 charitable deduction, Ted's taxable estate was $1,800,000, and estate taxes payable by reason of Ted's death total $108,000. Ted's executor wants to know: Against whom should the $108,000 in death taxes be charged? Advise him.

Majority rule: Absent contrary will provision, death taxes are apportioned (on a pro rata basis) among all persons interested in the estate (beneficiaries of both probate and non-probate transfers). Exception: Beneficiary of an interest that qualifies for an estate tax charitable or marital deduction gets benefit of that deduction (does not have to contribute pro rata).

Numerator: value of each testamentary & nontestamentary gift Denominator: total value of taxable estate Al [specific devise of Blackacre]: $400,000 x $108,000 = $24,000 $1,800,000 Church [$200,000 cash legacy]:


Residuary trust: $1,200,000 x $108,000 = $72,000

$1,800,000 Carol [$200,000 life ins. proceeds]: $200,000_ x $108,000 = $12,000 $1,800,000 C. SPECIFICALLY DEVISED PROPERTY NOT IN ESTATE AT DEATH -- ADEMPTION 27. Terry executes a will that devises Blackacre to his brother Bob, and his residuary estate to his

wife. Two years later, Terry sells Blackacre for cash, and uses the sale proceeds to buy Whiteacre. Terry died last month without having changed his will. What does Bob take under Terry's will?

________ Where the will makes a specific gift of property, and the property is not owned by the testator at death (for whatever reason): 28. Henny's will contains this provision: "I bequeath the sum of $25,000, to be paid out of the

proceeds of sale of my Shell Oil stock, to Sally." [Demonstrative legacy.] One year before her death, Henny sells all of her Shell Oil stock and uses the sale proceeds to buy Exxon stock.

________ Does ademption apply to demonstrative (or general) legacies?

On Henny's death, what does Sally get?

(But if Henny owned any Shell Oil stock at her death, executor would be under duty to sell it to raise the $5,000.)

D. STATUTORY EXCEPTIONS TO THE ADEMPTION DOCTRINE

29. Same facts as in #27 (specific devise of Blackacre), except that Terry sold Blackacre for $10,000 cash and a $90,000 note secured by a mortgage on Blackacre. At Terrys death, the balance on the note is $65,000. What does Bob take under Terry's will?

These UPC provisions, which have been enacted in a number of non-UPC states, reverse the common law rules, which applied ademption to any case where specifically devised property was not in the estate at death. (At common law, testators probable intent was immaterial.)

#1. Specific devisee takes any remaining specifically devised property and:


-- Any unpaid balance of purchase price (together with any security interest) by

reason of sale of the property. -- Any amount of condemnation award for taking of the property, to the extent

unpaid at testator's death. -- Any amount of fire or casualty insurance proceeds for damaged or destroyed

property unpaid at death.

Caveat: These rules DO NOT APPLY if the sale proceeds, condemnation award or insurance claim were fully paid before testator's death. (Rationale: Testator had time to change his will.)

-- Property acquired as a replacement property for specifically devised property.

[I devise my residence on Smith Street to my sister Sue; T sells that house and buys a residence on Oak Street.]

#2. Will executed before T declared incapacitated: If specifically devised property is sold by guardian or conservator, or if condemnation award or insurance proceeds are paid to the guardian or conservator because of fire or casualty, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds. (Otherwise, guardian or conservator could change the will by deciding what assets to sell. Also, T didn't have capacity to change his will to adjust for the loss or destruction of the property.)

E. BEQUESTS OF STOCK AND OTHER SECURITIES 30. Tony executes a will that contains the following clauses: "5th. I give my 100 shares of IBM stock to Albert Avins." "6th. I give 100 shares of Kodak stock to Ben Baker."

One year before his death, Tony sells his IBM stock and uses the sale proceeds to buy AT&T stock. Also before his death, Tony sells his Kodak stock and invests the proceeds in 200 shares of Polaroid stock.

a. What does Avins get ("my 100 shares of IBM stock")? b. What does Baker get ("100 shares of Kodak stock")? For ademption purposes,


31. Suppose, instead, that Tony does not sell his Kodak stock? After Tony executes the will but before his death, Kodak splits two-for-one, and certificates for 200 shares of Kodak stock are found in Tony's safe deposit box after his death.

[Majority rule: A specific bequest of stock includes any stock produced by a stock split, stock dividend, and stock resulting from a merger, reorganization, or other action initiated by the entity after the will was executed, but does not include stock acquired by the exercise of a stock option.]

Held: Baker takes all 200 shares of Kodak stock, because the gift of stock was a specific bequest!

But how can that be, when the gift was called a general legacy in #30?? Something is going on herebut let us recognize where it is. In #30, the courts have seized on the absence of a possessive pronoun "my," calling it a general bequest to avoid ademption. But the issue here is different (stock split). A gift of stock can be specific for one purpose (stock split) and general for another purpose (ademption).

F. SPECIFIC GIFT OF ENCUMBERED PROPERTY IS THE LIEN EXONERATED? 32. Teddy's will devises Whiteacre to Joan, and devises his residuary estate to Betty. On Teddy's

death, Whiteacre is subject to a mortgage securing a $10,000 note on which Teddy was personally liable. Joan demands that Teddy's executor pay the $10,000 debt out of the residuary estate so that she will take title free of the mortgage lien. Is she entitled?

Common law: YES because liens on specifically devised property are "exonerated from the residuary estate.

UPC and majority rule: ________* because exoneration of liens doctrine: (*unless the will directs exoneration) Under the majority rule, Joan takes:

VII. REFERENCE TO FACTS AND EVENTS OUTSIDE THE WILL A. INCORPORATION BY REFERENCE DOCTRINE 33. On July 1, 1998, Thor executes a will that provides: "I devise Blackacre to the person named

in a memo dated May 4, 1998, that I have written and placed in my safe deposit box. I give my residuary estate to my brother Ben." After Thor's death there is found, in his safe deposit box, a typed memo dated May 4, 1998, signed by Thor but not witnessed: "Pursuant to my will, I want Blackacre to go to my nephew Norman."

________ Does Norman take Blackacre under the memo, when the memo was not

witnessed, and was not part of the will that was signed by Thor and the attesting witnesses?


An extrinsic document, not present when the will was executed (and thus not part of the duly executed will), can be INCORPORATED BY REFERENCE into the will . . . IF:

#1. Writing must be in existence when the will was executed.

#2. Will must show an intent to incorporate the writing.

#3. Will must describe the writing sufficiently to permit its identification. ("So there can be

no mistake as to the identity of the document referred to.")

33a. Same facts, except that the memo was dated May 4, 1999. ________ Incorporation by reference on these facts? 34. With Tom's will in his safe deposit box was the following typewritten, unwitnessed memo

written after Tom signed his will: "In my will I referred to a list that I would prepare at a later date leaving certain items of personal property, and this is it: I leave my golf clubs to my friend, Hobie Gates, my fishing tackle to my son Sam, $2,000 to my daughter Donna, and my IBM stock to my brother Ivan. /s/ Tom Testator." If the state has enacted the controlling UPC provision, valid disposition . . .

________ as to golf clubs? ________ as to the fishing tackle? ________ as to $2,000? ________ as to the IBM stock?

Under the UPC and several non-UPC states, statutory exception to incorporation by reference rule: Will may refer to written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (other than money, intangibles, property used in trade or business) not specifically disposed of by the will. The written list must be signed by testator, must describe the property with reasonable certainty. Can be written before or after the will is executed; can be altered at any time.

Statute provides a simple and inexpensive procedure for making gifts of personal items of sentimental value, without having to amend the will every time the client changes his mind, or wants to add to the list.

B. ACTS OF INDEPENDENT SIGNIFICANCE DOCTRINE 35. Tina dies leaving a will that provides: "I give the automobile that I own at my death to my

nephew Norman. I give the furniture and furnishings in my living room to my sister Sue." A year before her death, Tina had traded her 1999 Honda Civic in on a brand new Mercedes Benz. Six months before her death, Tina moved a $25,000 Picasso print from his den and mounted it on her living room wall. What is the effect of these acts on the provisions of Tina's will?

________ Does Norman take the Mercedes? ________ Does Sue take the Picasso?


Key words: Acts of independent significance Also known as doctrine of nontestamentary acts *________ Same result for gift of "contents of my sea chest"?

* Except for title documents: deeds, stock certificates, bank passbooks

VIII. OTHER WILLS DOCTRINES A. MISTAKES OR AMBIGUITIES IN THE WILL 36. Tom tells his lawyer to draw his will and give his nephew Ed "300 shares of Acme stock." In

typing the will, the typist makes a mistake and types the figure as "200," which Tom does not notice when he signs the will. At Tom's death he owns 300 shares of Acme stock. Ed offers the testimony of Tom's lawyer that the typist made a mistake. What does Ed get and why?

________ shares:

Absent suspicious circumstances, it is conclusively presumed that: 37. "I give $10,000 to my nephew, John Paul Jones." Problem: T has a nephew James Peter

Jones, and another named Harold Paul Jones, but no nephew named John Paul Jones. Who takes the $10,000?

This is called a _____________________________________ because there is a ________________________________________. ________ Is extrinsic evidence admissible? What if the extrinsic evidence does not cure the ambiguity? 38. Rod's will includes this gift: "I give the sum of Twenty-five Dollars ($25,000) to my niece

Nora." This is called a ______________________________________________________.

________ Is extrinsic evidence admissible?

________ Does the admissible evidence include "facts and circumstances"


evidence? (evidence about the testator, his family, the claimants under the will and their relationship to the testator, testator's habits and thoughts, etc.)

________ [majority rule:] Does the admissible evidence include testator's declarations of intent to a third party? (E.g., he told a friend he had bequeathed $25,000 to his niece Nora.)

[But modern trend is to admit all types of extrinsic evidence to cure patent as well as latent ambiguities.]

________ Does the admissible evidence include anything testator said to his attorney?

B. CONTRACTS RELATING TO WILLS

Under the UPC and in most states by statute, a contract to make a will or not to revoke a will, can be established only by:

(1) provisions in the will stating the material provisions of the contract, or (2) express reference in the will to a contract and extrinsic evidence proving the contract's

terms, or

(3) a writing signed by decedent evidencing the contract. Execution of a joint will or reciprocal wills does not raise a presumption that a contract exists.

These statutes have eliminated troublesome litigation over joint wills (the wills of two persons on one piece of paper -- "We and each of us dispose of our property as follows. . ."), as to whether the will (wills?) was executed pursuant to a contract that the surviving party will not revoke the joint disposition. The cases sometimes found the existence of a contract merely from the execution of a joint will using plural possessive pronouns (we, us, our) that made a disposition of the combined estates.

C. EFFECT OF WORDS OF DISINHERITANCE IN A WILL 39. Tammy's will devises Redacre to her son Sam and her residuary estate to her husband Harold.

The will provides: "I intentionally make no provision for my daughter Nancy, as she married out of the faith and has been a great disappointment to me." Two years later, Tammy divorces Harold, and two years after that Tammy dies without having changed her will. She is survived by Sam and Nancy as her nearest kin. Nancy had no children. Who takes the residuary estate?

Harold?

Who takes the residuary estate, then? (majority rule) ___________ to Sam and ___________ to Nancy.


Most states apply the common law rule, which says: When a will does not make a complete disposition of the estate (partial intestacy), words of disinheritance in the will are ineffective.

Rationale: When property passes by intestate succession, it passes pursuant to the intestacy statute, not the decedent's will.

"However, under the Uniform Probate Code's negative bequest rule, a will can provide how property shall NOT be disposed of, meaning that words of disinheritance are given effect; estate is distributed as though disinherited person predeceased the testator. Under the UPC, Sam would inherit the entire residuary estate.

D. NONPROBATE ASSETS are interests in property that are not subject to disposition by will or

inheritance, and do not pass through a person's probate estate for purposes of administration. Major types (also called nontestamentary assets):

#1. Property passing by right of survivorship (joint bank account, etc.). #2. Property passing by contract: life insurance, employee retirement benefits paid to

beneficiary other than insured's executor or estate. #3. Property held in trust, including a revocable trust, where trust terms govern

distribution of assets. #4. Property over which the decedent held a power of appointment. 40. T has a $50,000 Aetna life insurance policy that names Bill Bates as beneficiary. T dies

leaving a will that provides: "I direct that the proceeds of my Aetna life insurance policy be paid to my sister Ann Painter." Who takes the $50,000 policy proceeds?

IX. ELECTIVE SHARE STATUTE 41. Winkie dies leaving a will that provides: "I give my husband Hobie Gates the sum of $23,

which is one dollar for each miserable year I spent with him. I give all the rest of my property to my faithful chauffeur Claude, in appreciation of his many services." Winkie is survived by Hobie, Claude and the couples daughter Dorkie. What are Hobie's rights?

Hobie should file for an elective share of Winkies estate. All non-community property states except Georgia have elective share statutes designed to protect spouses against disinheritance, by ensuring that the surviving spouse can take a specified minimum share of the decedents estate. (None of the community property states has an elective share statute.)

1. Amount of elective share. In many states, the elective share amount is one-third of

the decedent's net estate if the decedent was survived by descendants, one-half if the decedent was not survived by descendants.

Under the original (1969) Uniform Probate Code, the amount of the elective share is one-third of the net estate, regardless of whether the decedent was survived by descendants.


The Revised 1990 UPC takes an accrual approach (c.f. pension plan vesting rules), under which the amount of the elective share is tied to the length of marriage. The surviving spouse is entitled to an elective share percentage of 3% per year for the first 10 years of marriage, and 4% for the next 5 years until after 15 years of marriage the elective share is fully phased in at of the estate.

2. Spouse must file notice of election. The right to an elective share is not automatic.

The spouse must file a notice of election within a specified period (usually within 6 months after the will is admitted to probate).

3. Who may make the election. Election can be made on behalf of a legally

incapacitated spouse by a guardian or conservator, with court approval, upon a showing that an election is necessary to provide adequate support for the spouse during his probable life expectancy. But if the spouse dies before election is made, an election cannot be made by the deceased spouse's personal representative. [Rationale: Purpose of elective share is to protect the surviving spouse against disinheritance, not to provide benefits to the spouse's heirs.]

4. In making up the elective share all beneficiaries of the estate contribute pro rata, and

their interests in the estate are reduced pro rata. However, property left outright to the spouse by will is first applied. (Purpose: To avoid disruption of decedent's testamentary plan as far as possible.) If, for example, Rick's will devises Blackacre to his wife Lucy and the rest of his estate to his daughter, and Lucy files for an elective share, the value of Blackacre is first applied in making up the elective share entitlement.

42. Two years before his death, Hank established a revocable trust naming Acme Bank as trustee:

Income to Hank for life, and on Hank's death remainder to his son Steve (by a former marriage). Hank died two months ago, leaving a will that bequeathed his estate to his wife Wendy and Steve in equal shares. While that sounds fair enough, nearly all of Hank's property had been placed in the trust. Hank left a net probate estate (after expenses) of $36,000; the value of the assets in the revocable trust at Hank's death is $900,000. Wendy files for an elective share. Does Wendy's elective share right apply to the assets in the revocable trust?

Minority rule: NO. Elective share statute giving one-third or one-half of the decedent's "estate" means the probate estate. The elective share does not apply to non-probate transfers such as revocable trusts, etc., because these are not part of the transferor's "estate."

UPC and majority rule: YES. The policy underlying the elective share should not be defeated by lifetime and nonprobate transfers in which the donor retains rights, powers, or economic benefits. In most states, the elective share applies to the AUGMENTED ESTATE, which includes the net probate estate and also lifetime transfers in which the grantor retained the power to revoke, or to invade, consume or dispose of principal. In addition to revocable trusts, this includes Totten Trust ("A, Trustee for B") bank accounts, joint and survivor bank accounts, etc.

X. WILL CONTESTS

Only interested parties can bring a will contest: Persons with an economic interest adversely affected by the will's probate. (Heirs, legatees under earlier will whose interest would be defeated


by this will.) Thus a close personal friend, not named as legatee in an earlier will, has no standing to contest the decedent's will.

A. LACK OF TESTAMENTARY CAPACITY. The test: Did the testator have sufficient capacity to: 1. Understand the nature of the act he was doing? (He was writing a will.) 2. Know the nature and approximate value of his property? 3. Know the natural objects of his bounty? 4. Understand the disposition he was making?

Evidence of capacity or lack of it must relate to circumstances at the time the will was executed, or shortly before or shortly thereafter. The more distant in time from the will's execution a particular fact may be, the less significance it has on the question in issue: Did the testator, at the time the will was executed, have capacity? [Recent case: Six months before signing his will, T had been in a mental hospital suffering from paranoia and manic depression: Evidence was too remote to be relevant to condition at the time the will was signed.]

Mere old age, poor health, frailty, failing memory, or vacillating judgment are not inconsistent with testamentary capacity if the testamentary prerequisites [above] were possessed by testator.

43. T was 93 years old when he signed his will. Six months earlier, T had been adjudicated

incapacitated, and a guardian [or conservator] was appointed to manage his property. The trial judge granted the heirs' motion for a directed verdict on the ground that T did not have testamentary capacity.

________ Was this decision proper? #1: Adjudication of incapacity involves ______________________________

(capacity to contract, to manage one's affairs). #2. Jury could find that the will was executed during a ______________________. B. UNDUE INFLUENCE: Where one with testamentary capacity is subjected to and controlled by a

dominant influence or power. Burden of proof is on contestants, who must show: 1. Existence and exertion of the influence. 2. Effect is to overpower the mind and will of the testator. 3. Product is a will (or a gift therein) that would not have been made but for the

influence. (Undue influence may be shown as to the entire will, or as to one gift in the will.)

"Influence is not undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator, but of the one exerting the influence." ["mental duress"]

While evidence of undue influence is usually circumstantial, these alone are not enough: 1. Mere opportunity to exert influence. Fact that one child (who received major share of


the estate) lived with mother, wrote checks for her, balanced the checkbook, helped on income tax, held a power of attorney . . . is not evidence that the opportunity was taken advantage of.

2. Mere susceptibility to influence due to illness, age. Fact that Mother was very old, had

broken her hip, had memory lapses, took Valium . . . this is not evidence of undue influence.

3. Mere fact of unnatural disposition Fact that will gave daughter of estate and her

two sons one-sixth eachthat is not evidence that the will was the product of undue influence.

44. Tommy's girlfriend Gloria nagged him, badgered him, and threatened to leave him unless he

"proved his love" by writing a will in her favor, which he did. Undue influence? 45. Will drafted by Attorney's law partner devised entire estate to Attorney, whom client had never

met before.

Where there exists a confidential relationship between the testator and a party, and that party will benefit from the will, and that party had the opportunity to exert undue influence, there is an _________________________________________________ of undue influence, which is strengthened when there are ___________________________________________

If an inference is raised, this doesn't affect the burden of proof (contestant still has burden of proof), but will proponent now has the burden of going forward with evidence that no undue influence was exerted. If will proponent does not produce sufficient rebuttal evidence, the inference satisfies the contestant's burden of proof on the issue of undue influence.

46. Terry (who has no children) leaves a will that bequeaths $10,000 to his niece Nell and his

residuary estate to his cousin Sam. The will contains a no contest ("in terrorem") clause: "If any beneficiary contests this will or any part thereof, he shall forfeit any interest given to him by my will." Nell contests the will on grounds of incapacity and undue influence, but loses; the will is admitted to probate. Does Nell forfeit her legacy?

___________ . . . unless she had ______________________________________________.

Majority rule: No-contest clauses are given full effect unless the court finds that the contest was brought in good faith and with probable cause (i.e., it wasn't a strike suit designed to extract a settlement). Thus Nell does not forfeit the legacy IF court finds she had probable cause for filing the will contest.

THE "UNLESS" IS THE MOST IMPORTANT PART OF THE MAJORITY RULE!

In several states (e.g., Massachusetts, New York), no-contest clauses are given full effect regardless of whether the contest was filed with probable cause. Rationale: A testator


should be permitted to protect his testamentary plan, and his reputation, against post-death attack.

XI. ESTATE ADMINISTRATION -- CREDITORS' CLAIMS 47. Tom died May. His will was admitted to probate, and his wife Wilma, named as executor in

the will, published proper notice to creditors (in a newspaper of general circulation) on June 10. For the last two months of his life, Tom was hospitalized at Mercy Hospital. On December 20, the Hospital filed its claim against Tom's estate for the $24,000 expenses of Tom's last sickness. Wilma as executor refuses to pay the claim.

________ [Former law:] Is Hospital entitled to collect the $24,000 from Tom's estate? ________ [Current law:] Is Hospital entitled to collect the $24,000 from Tom's estate? Traditionally, nearly all states had nonclaim statutes (special short statutes of limitation) applicable

to claims against a decedents estate. All claims not presented within a prescribed period of time after the first publication of notice of administration [e.g., Illinois, 6 months, Uniform Probate Code, 4 months; Oklahoma, 2 months) were barred.

In Tulsa Professional Collection Service v. Pope (1988), the U.S. Supreme Court held that the

Oklahoma nonclaim statute (which provided for notice by publication only) was unconstitutional as applied to known creditors or creditors who were reasonably ascertainable. The Due Process clause requires personal notice to known creditors before their claims can be barred. As a result, all states with similar nonclaim statutes had to amend their statutes.

The Uniform Probate Code has three provisions relating to creditors claims. Under UPC 3-801(b),

the personal representative may (its optional) give personal notice to creditors, requiring them to present their claims within the later of (i) 60 days after receipt of the notice or (ii) 4 months after the first publication of notice; otherwise their claims will be barred. The personal representative who wants to expedite matters can give personal notice to any creditor, and can shorten the time required for presenting the claim.

Under UPC 3-801(a), all claims not presented within 4 months after the first publication of notice

of administration are barred. This the very type of statute that was ruled unconstitutional in Tulsa Professional Collection Service v. Popebut only as applied to known or ascertainable creditors. This UPC provision recognizes that it is still constitutionally permissible to cut off the claims of unknown and unascertainable creditors with notice by publication only.

UPC 3-803 sets out a one-year statute of limitations applicable in all cases, whether the decedent

left a will or died intestate, and even if no permissive personal notice or notice by publication was given. All claims not presented within one year of the decedents death are barred. Dictum in Tulsa Professional Collection indicated that such a self-executing statute of limitations, which applies to all cases and is not dependent on any probate court, would be constitutionally permissible.


TRUSTS TRUST is an arrangement for making gifts of property and for the management of assets, under which the trustee holds legal title to the trust assets for the benefit of the beneficiaries, who hold equitable title. Trustee has the burdens of ownership (duty to manage, safeguard, invest, etc.); beneficiaries have equitable title and the benefits of ownership.

I. REQUIREMENTS FOR A VALID TRUST To have a valid trust, SETTLOR . . . DELIVERS . . . RES (trust property) . . . to TRUSTEE . . . for the benefit of the BENEFICIARIES, with INTENT TO CREATE A TRUST. Trust must be for a LAWFUL PURPOSE. As with the law of gifts, no consideration is required for creation of a trust. A. SETTLOR must have legal capacity. (must be age 18 or over; must have capacity to convey legal

title to the trustee, a higher test for capacity than for wills.) B. DELIVERY requirement does not apply to a self-declaration of trust ["I hereby declare myself

trustee..."] or testamentary trust. But for an inter vivos trust that names third party as trustee, the mere intent to create a trust, or a gratuitous promise to create a trust, is not sufficient. As with the law of gifts there must be delivery of subject matter of the trust, with the intent to convey legal title to the trustee.

1. Sam told lawyer he wanted to create trust for his daughter, but died before signing trust

instrument or delivering assets to the trustee. Valid trust? ________ because no delivery of the trust assets with intent to transfer title during

Sam's lifetime.

Same answer where trust signed by Dad purported to create trust to be funded with "whatever money or property that I contribute to the trust over the next ten years." This was merely a promise to create a trust in the future, not supported by consideration.

C. RES: the corpus, the principal, the subject matter of the trust.

To have a trust, legal title to a specific interest in property must be conveyed to the trustee. The subject matter of the trust must be certain and identifiable. If there is no trust property, there is no trust.

2. When Grandpa told Uncle Hobie Gates that he was leaving Whiteacre to Hobie in his will,

Hobie signed an irrevocable Declaration of Trust: "I declare myself trustee of my interest in Whiteacre; and when I receive it from Grandpa's estate, I shall pay the income therefrom to Nephew Ned for life, remainder to his issue." After Grandpa's death Uncle Hobie received Whiteacre pursuant to the will. Can Nephew Ned enforce the trust against Uncle Hobie?

________ Was valid trust created when Hobie wrote the irrevocable Declaration of Trust?

Because at that time, Hobie had an:


A different result is reached when the promise to hold property (to be received in the future) in trust is supported by consideration. Under contract principles, the trust automatically attaches when the property is received.

3. Willa, who owns common stock that pays her over $100,000/year, writes, signs and notarizes

a document: "I hereby create a trust for the benefit of my maid Mimi. I shall pay Mimi $3,000/month from dividends paid on stock that I own. After my death, [Bank] as trustee shall continue to pay Mimi $3,000/month until her death." No cash, stock or other property was set aside as the corpus of the trust.

________ Valid trust? D. TRUSTEE

Must have legal capacity to deal with the property (must be over age 18; must have capacity to contract and to execute a deed).

4. Ann's will devises her residuary estate in trust: "income to my daughter Martha for life, and

on her death to distribute the trust principal to her descendants." However, the will does not name anyone as trustee.

________ Valid trust?

No trust fails for lack of a trustee. If the intent to create a trust is clearly manifested but no trustee is named or if the named trustee dies or resigns with no provision for a successor trustee, the court will appoint a suitable successor to carry out the trust.

5. Irreconcilable conflicts arise between First Bank (the trustee) and the beneficiaries. May

First Bank resign as trustee? If so, what procedure must it follow? #1: #2: 5a. Same facts in #5, except that First Bank does not want to resign as trustee. The beneficiaries

bring an action seeking to remove First Bank as trustee, citing the irreconcilable conflicts. Should they prevail?

________ . . . unless the beneficiaries can show that conflicts prevent trustee from carrying out duties, or that trustee has breached a material term of the trust.

What explains the different results in #5 and #5a?


6. Albert transfers title to Blackacre to Hobie Gates as trustee for the benefit of Albert's's son

Carl. Under the agreement, Carl has the power to manage and control the use of Blackacre, and Hobie as trustee has no powers or active duties over the property. [Cf. Statute of Uses, 1536!]

________ Valid trust with respect to Blackacre?

If named trustee has no powers or active duti