WILLS OUTLINE

PART I

A FOUNDATION FOR ESTATE PLANNING:

SOCIETY'S CONTROL OF INHERITANCE

Power of the Dead Hand:

Courts will ordinarily order property destroyed only if there is a convincing justification.

Rationale - The testator does not suffer the economic consequences of such actions. The inhibiting effect of immediate economic loss does not affect a direction in a will to destroy property.

Disruption of Marriage and Family:

The restraint to induce the transferee to marry within a designated religious faith, or to refrain from marrying a person of such faith, is valid if, and only if, under the circumstances, the restraint does not unreasonably limit the transferee's opportunity to marry.

A restraint unreasonably limits the transferee's opportunity to marry if a marriage permitted by the restraint is not likely to occur.

The likelyhood of marriage is a factual question, to be answered from the circumstances of the particular case.

(a) Motive is irrelevent.

If marriage within the permitted sphere would be so contrary to those beliefs that it is unlikely that such marriage will ever occur, the restrint is invalid.

Provisions encouraging separation or divorce have usually been held invalid, unless the dominant motive of the testaotor is to provide support in the event of separation or divorce.

Conditions that tend to disrupt the family will not be upheld by the court.

Requirements to change ones name have been generally upheld unless the purpose is to seperate one from ones family

Restraints with regards to personal habits or requiring the transferee to pursue a particular education are upheld.

Question in such cases is when the condition is met.

The Probate Process: See p. 49 for good summary of the process:

Definitions:

Executor - a personal representative named in the will.

Administrator - personal representative not named in the will

Devise - used for the giving of real property in a testimentary instrument

3. Bequeth - used for the giving of personal property in a testimentary instrument

U.P.C. has made probate very simple and inexpensive process

0. Theory - almost all estate can be distributed without any intervaention by the court -- the personal representative is a trusted person.

Note that at any time any beneficiary or creditor can go to court to stop the personal representative from wasting the estate. If this occurs, the old probate process kicks back in. U.P.C.  3-501.

B. General Outline of the Process:

Opening - formal or informal

1. Administration of the estate - formal or informal

Closing - formal or informal

B. Specific Outline of the Process: U.P.C.  3-301 - Process for informal Probate proceedings

The pleading, will, and a request for the apointment of a personal representative is made to the court.

a. timing - U.P.C.  3-108

Will is admited to probate

a. signifies that it is properly executed and appears to be a valid will U.P.C.  3-303

If there is a question as to the validity of the will, there can be a formal opening to see if the will is valid.

(0) Request for notice and a hearing are given by the court and the will is validated.

The personal representative is appointed and given letters testimentary

a. these letters are a licence to deal with the decedents property.

personal representative must notify all interested persons and those disinherited by the will within 30 days. U.P.C.  3-306.

5. Assets are collected, bills paid, notice given to creditors, and property distributed.

Petition for closing of the estate is made by the personal representative. U.P.C.  3-1003.

a. personal representative released by the court.

When is probate necessary:

0. To cut of claims of creditors - security

Provide evidence of title - must do this if real property

a. Banks almost always require title to distribute the money from an account.

The title clearing function of probate:

0. U.P.C.  3-101 - Devolution of Estate at Death

The estate devolves to the heirs, legatees or named devisees upon death, subject to the claims of the creditors, etc.

a. personal representative has control over the title until dismissed.

Family agreements as to the distribution of Estate:

a. majority rule: A compromise or settlement agreement, entered into for the purpose of avoiding the trouble and expense of a will contest, is not void as against public policy, where no persons or interest other than the persons and interests of the contracting parties are prejudicially affected thereby, unless it is entered into through connivance or fraud.

Minority rule: Two exeptions to above rule:

(0) the beneficiaries under a will cannot defeat a trust or specific restriction placed upon the property in the testator's will

Must have probated estate to pass the title to real property. Many banks also will not distribute bank accounts without letters testimentary.

II. Contests Of Wills:

Usual procedure for will contests:

0. Wills admitted to probate upon proof of execution which gives a presumption of validity.

Then, within special periods allowed by statute, complainants may petition to revoke probate upon grounds of mental incapacity, undue influence, fraud, or duress.

1. After probate becomes final, complainants may sue individuals in tort for wrongful interference with inheritance.

Who is allowed to contest a will:

0. A person will have standing to sue if the persons interest in the estate would be impaired or defeated by the probate of the will, or benefited by setting it aside. U.P.C.  1-103(20)

Naked legal title alone (trustee) is not enough to grant standing to sue. In re Estate of Getty.

a. Creditors of beneficiary can have standing if they can step into the shoes of the beneficiary.

Judgment against the beneficiary allows this.

II. Responsabilities and Powers of the personal representative:

U.P.C.  3-711 - powers of Personal representative; In General

G. The personal representative is a fiduciary.

When one becomes a fiduciary:

a. has no duty until appointed

Cannot be forced to be a personal representative

1. Standard of Care: U.P.C.  703(a)

Must exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their on affairs. (standard from case)

b. The personal representative cannot delegate his duties to another

Measure of damages for breach of fiduciary duty:

a. What you would have received minus what you got.

has the responsibility to:

0. inventory and collect assets of the decedent

Inventory includes getting an appraisal of the properties values.

(0) Includes all tangeable and intangiable assets.

manage the assets during administration U.P.C.  3-715.

a. Uses letters testimentary to collect debts and gives the debtors a receipt and release.

Discover what the assets are

a. manage the assets

Keep from depleting

(1) keep insurence current

receive and pay the claims of creditors

a. Give notice to the creditors

cuts off the claims of creditors not made within the shortened statute of limitations.

2. distribute the assets to those entitled.

Professional Responsibility:

A. If a lawyer doubts his ability to procuce the best possible will for the client, he should decline to prepare one.

The beneficiary of a will may maintain an action against an attorney who negligently drafted or supervised the execution of the will even though the beneficiary is not in privity with the attorney.

0. Such action accrues at the time the testator dies for purposes of the statute of limitations.

Lawyer has a duty to inform clients that there wills should be reviewed when changes occur in their lives, etc.

B. Lawyer may have a duty to inform clients when the law changes such that it will effect their wills, and then allow them to decide what to do.

Work through the estate planning problem on page 78:

A. Should name alternative executors in case the original executor cannot or will not do it.

Should provide minor trusts for minor children

A. Should provide what will happen upon simultaneous death.

Problems of revokable living trusts:

0. Expensive

Complicates life - everything must go into the trust

1. Certain trusts require income tax returns. CHAPTER II

INTESTACY: AN ESTATE PLAN BY OPERATION OF LAW

Intestate Successors:

A. A persons domicile governs all of the decedents personal property. The jurisdiction where the land is located governs the disposition of all real property.

U.P.C.  2-101 Intestate Estate - Anything passing intestate goes as prescribed by the statutes below:

0. U.P.C.  2-102 Share Of The Spouse

U.P.C.  2-103 Share Of Heirs Other Than Surviving Spouse

a. The U.P.C. does not allow inheritance by kin more remote than second line collaterals.

Notice that U.P.C. divides the intestate estate into equal shares between the maternal grandparents and their descendants and the paternal grandparents and their descendants. This division is not made in most states.

(0) Advantages of U.P.C. rule:

(a) Simplifies administration of estate by avoiding the necessity of finding distant relatives

(b) It eliminates standing of remote heirs to bring will contests.

(c) It removes a great deal of uncertainty in land titles.

U.P.C.  2-105 No Takers

2. U.P.C.  2-106 Representation

U.P.C.  2-107 Kindred of the Half Blood

a. The U.P.C is the majority rule in this area.

Other states split:

(0) half blood gets half - scottish rule

half blood takes only when there are no whole blood relatives of the same degree.

A. Surviving Spouse:

It is widely understood that the spouses share under intestacy is too small. Most people want the entire estate to go to the surviving spouse when there are no children from a prior marriage, thus excluding parents and brothers and sisters.

A. Childrean and other descendants:

When one of several children has died before the decedent, leaving issue, all states provide that the issue shall represent the child and divide the child's share among themselves.

5. If a child dies before the decedent, the childs spouse does not inherit from the decedent.

Parents:

0. Parents do not take in any jurisdiction when the decedent is survived by descendants. When there are no descendants, the growing trend is to give all the property, after deducting the spouse's share, to the parents, excluding brothers and sisters.

Problem on P. 98-100 should be worked through for practice on applictaion.

I. Distributions to Descendants:

Representation:

0. Per Stripes - the estate is divided at the child level regardless of whether they are alive or dead.

This is Utahs rule and is the minority rule

0. Strict per capita - count the number of takers and distribut equally.

Per Capita with representation - the estate is divided at the first level of living decendents.

a. This is the U.P.C. rule and the majority rule.

Revised U.P.C.  2-106 - divides at the first level living, then combined deceased children with decendent's shares and divides at next level of living descendents.

2. Lawyers should always describe exactly how they want the property divided, not just use one of the terms since different states may have different definitions.

Try Problems p. 112.

D. Posthumous Children:

Where for purposes of inheritance or of determining property rights, it is to a child's advantage to be treated as in being from the time of conception rather than from the time of birth, the child will be so treated if born alive.

a. Courts have established a rebuttable presumption that the normal period of gestation is 280 days. If the child claims that conception dated more than 280 days before birth, the burden of proof is usually upon the child.

Adopted Children:

0. An adopted child inherits from and through his adoptive parents in all states. In some states an adopted child may inherit from and through his natural parents as well, at least in certain situations.

U.P.C.  2-109 Meaning of child and related terms:

a. An adopted person is the child of an adopting parent and not of the natural parents except that the adoption of a child by the spoouse of a natural parent has no effect on the relationship between the child and either natural parent.

U.P.C.  2-114 Persons related to Decedent through two lines

a. Can only get one share.

Children Born out of Wedlock:

0. Old common law - illegitimate children cannot inherit from either parent

Now: Can inherit from mother in all jurisdictions

a. Inheritance from fathers differs from state to state:

U.P.C.  2-109(2) alternative for states that have not adopted the uniform parentage act.

F. Distributions to Minor Children:

The guardian of the minor person is not necessarilly the guardian of the minors estate.

2. If a minor receives property requiring active management, a guardian of the estate must be appointed to manage teh assets even though one or both of the parents is living.

Concervators and guardians are very expensive to have and have appointed, therefore, parents with young children should always appoint in their wills a guardian of the minors person and create a minors trust.

3. U.P.C.  5-103 Facility of Payment or Delivery

Under the Uniform Gift to Minors act, you can transfer property to a minor by making a gift to another person for the benefit of the minor and this brings about the powers of conservators under the U.P.C.

I. Prohibited Beneficiaries:

Killers of the Decedent:

0. Majority Rule: an heir, devisee, or legatee who stands convicted in any court of intentionally and unlawfully killing the decedent whall forfeit any share in the decedents estate.

Courts normally draw the line for purposes of inheritance between voluntary manslaughter and involuntary manslaughter.

1. U.P.C.  2-803 Effect of Homicide on Intestate Succession

The killer is normally treated as if he predeceased the decedent for ALL purposes.

a. Notice that joint tenancy is also severed by murder.

Some states hold the entire property under a constructive trust for the dead tenant's estate except that the murderer is entitled to one half the income therefrom for life.

1. Notice that there are different burdens for criminal proceedings and for a probate proceeding. A conviction of murder or other intentional killing will be sufficient to bring the killing statutes into effect. However, an aquital is not conclusive for probate purposes.

If there is a will, then

a. Under the common law residuary takers get it because the gift is considered to have lapsed.

U.P.C.  2-605 Anti Lapse statute

(0) This statute reverses the common law, but does not apply in all cases. It only applies if it a grandparent or lineal decendent of a grandparent. If it is then the devise goes to the issue of the beneficiary.

Unworthy Heirs:

0. Some state will not allow a parent or spous to inherit if unworthy:

commited adultery

a. refused to support

etc.

H. Inheritance by Aliens:

Some states are leary of foreign ownership and have put limitations on it.

I. Transfer of Shares in the Decedents Estate:

Advancements:

0. Definition Advancement: A distribution during the lifetime of the parent to his or her child.

Advancement only applies in intestacy.

0. common law - Preusmed that parents wanted to treat all of their children equally. Therefore, they were calculated into the distribution of the estate at death.

This is a presumption that can be overcome.

b. You cannot force a child into a hotch pot. However, if they choose to go in they must allow advancements to be counted.

Time value of money is not calculated. Money is valued at the time the person came into possession.

0. U.P.C.  2-110 - Advancements:

Changes the common law - presumption is against an advancement. Must be declared as an advancement in contemporanious writing, or acknowleged in a writing. It is broader than common law also; it includes all heirs, not just children.

I. Transfer of an Expectancy:

Definition of Expectancy: What you hope to get upon the death of a relative - is not a property interest at all.

1. Expectancies cannot in general be transfered. Some courts will enforce the transfer so long as there is adequate consideration for the contract.

Some cases of transfer of an expectancy are not upheld in some jurisdictions, unless the testator is informed of it. It is considered a fraud on the testator.

1. Release of Expectancy: If a child releases his expectancy, but the parent dies leaving the child but no other descendants, most courts will not give effect to the release.

Rationale: The theory is that it itfair and in accordance with the parties intentions to give the release effect only when the releasing heir is one of two or more descendants of the parent.

I. Disclaimer:

Common law:

a. when the decedent dies intestate, the heirs cannot disclaim because the property passes to them immediately upon death, and they will have to transfer it to give it to their children. (incurr a gift tax)

When the decedent dies testate, the heirs can disclaim and the property will devolve to their children directly (avoid gift tax, etc) Gifts require acceptance.

2. U.P.C.  2-801 Renounciation

Implies to testate and intestate heirs.

b. Can renounce for the purpose of defeating creditors

To do so you have to make sure that both statutes are met. both U.P.C. or other local disclaimer statute and the Internal Revenue Code 2518 on disclaimer (p. 133)

2. Some states will not allow a renouncement to defeat creditors claims. THey consider it a fraud on the creditor.

CHAPTER III

FORMALITIES OF WILLS

Mental Incapacity, Undue Influence, and Fraud:

A. Mental Capacity:

Reasons for requiring mental capacity:

a. will should only be given effect if it represents the testator's true desires.

A mentally incompetant man or woman is not defined as a person.

a. law requires mental capacity to protect the decedent's family.

Legitimacy cannot exist unless decisions are reasoned.

b. assures a sane person that the disposition he desires will be carried out even though he becomes insane and makes another will.

Protects society at large from irrational acts.

c. Protects senile or incompetent testator from exploitation by others

Requirements for mental capacity (these requirements are much less stringent then those required for making a contract or a gift): Decedent must know

a. the nature and extent of his property

the persons who are the natural objects of his bounty

a. the disposition which he is making; and

how these elements relate so as to form an orderly plan for the disposition of his property.\

2. Insane Delusion - A person may have sufficient mental capacity to execute a will but may be suffering from an insane delusion so as to cause a particular provision in a will - or perhaps the entire will - to fail for lack of testimentary capacity. Only the part of the will caused by the insane dillusion fails.

F: An insane delusionis one to which the testator adheres against all evidence and reason to the contrary.

(0) Majority view: A delusion is insane even if there is some factual basis for it if a rational person in the testator's situation could not have drawn the conclusion reached by the testator.

(a) Two questions to ask

i) Was there a delusion

ii) Did it effect the disposition

Minority View: Some courts have held that if there is any factual basis for the delusion, then it is not insane.

c. If there is only a mistake the court will not correct.

Undue Influence

0. Burden of proof on the contestent

To show undue influence must show:

a. the testator was susceptable to influence

tha th other party bhad the possition to influence (fiduciary relationship)

a. that the person had a disposition to influence the testator; and

that the will shows the results of the undue influence.

1. If undue influence is found the court can:

make the clause invalid

c. deny thw whole will from probate if the clause cannot be excised form the will.

No Contests clauses (very problematic)

a. Courts want to enfoce because they promote family harmony, however

if they do enfoce them, then they discourage suits that should be brought.

a. U.P.C.  3-905 Penalty Clause for Contest

solves this problem by enfoceing the clause if there is no probable cause for the bringing of the suit.

(1) This is the majority rule

Reasons for dispostions should be placed in the will when the dispostition is unatural.

a. This will help solve the undue influence problem to some extent

When there is an unnatural disposition you should asume there will be a will contest.

A. Fraud: The misrepresentation must be made with both the intent to deceive the testator and the purpose of influcneing the testamentary dispostion.

Fraud in the inducement: When a person misrepresents facts, thereby causing the testator to execute a will, to include particular provisions in the wrongdoeer's favor, to refrain from revoking a will , or not to execute a will.

a. Test: the testator would not have left the inheritance or made the bequest had he known the true facts

Fraud in the Execution: when a person misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator's intent.

6. Remedy: A constructive trust is placed on the wrongdoer.

Wrongful interference with Inheritance: one who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

a. To recover, P must show

the existence of her expectency

(1) that defendants intentionally interfered with her expectancy

the interference involved conduct tortious in itself such as fraud, duress or undue influence

(2) that there is a reasonable certainty that the devise to P would have been feceived but for defendants' interference; and

damages.

II. Execution of Wills:

Attested Wills

0. Requirements of Due Execution:

Four functions of a will:

(0) Ritual function - impress testator with what he is doing

Evidenciary function - supply evidence to court of testator's intent

(1) Protective function - safeguard testator against undue influence, etc.

Channeling function - allows for routine handling of estates by the courts.

a. Wills Acts:

Will must be in writing

(3) Signed at the foot or the end of the will by the testator

(a) Two possible results for the will not being signed at the end:

i) invalidate the entire will

ii) portion after the signature is invalid

Signature shall be made or acknowleged by the testator in the presence of two witnesses present at the time

(a) Both witnesses must be present at same time.

i) England line of sight rule: The testator must be capable of seeing the witnesses at the time of witnesses signing.

a) need not actually see

ii) Conscious presence test: the witness is in the presence of the testator if the testator, through sight, hearing, or hgeneral consciousness or events, comprehends that the witness is in the act of signing.

Witnesses shall attest and shall subscribe the will in the presence of the testator.

a. U.P.C.  2-502 Execution of will

No requirement of simultaneous witnessing - this relaxes the requirements.

(6) Signature - any mark that they intend to be the signature.

Utah - continues to require simultaneous witnessing, even though the U.P.C. was adopted.

0. Competency of Witnesses:

Common law: Witnesses to the will must be disinterested parties.

(0) Disinterested - means that the witness could not be a beneficiary (one directly benefited under the will)

U.P.C.  2-505 Who May Witness

(0) No need for disinterested witnesses.

Remedy for Interested witness: Most jurisdictions

(0) do not allow the gift to the interested party; or

do not allow the interested party to receive more than they would have under intestacy.

e. If the will states the attorny to be used for probate:

Attorney cannot enforce - is considered soliciting business

(2) Personal Representative assumes personal liability and has the right to chose the attorney.

(a) However, if the wording of the will makes the attorny more important that the PR then will be enforced.

Recommended Method of Executing a Will:

a. Most states have statutes recognizing as valid a will executed with the formalities required by

the state where the testator was domisciled at death,

(1) the state where the will was executed, or

the state where the testator was domiciled when the will was executed.

a. Lawyers should draft wills and execute them in a manner which will be valid in all states so that the above statute never has to be used.

See page 204 - 207 for procedure that will satisfy all states.

1. Proving a will in probate:

Must have the witnesses to the will come in and testify under oath as to the validity of execution.

b. U.P.C.  504 Self Proving Wills - thew will is notorized and the witnesses sign an attestation clause. This establishes consclusively the execution of the will. see U.P.C.  3-406.

This goes to the execution and that is all.

1. Safeguarding the Wills; Proof of lost wills:

Most states allow lost wills to be proven by a perponderance of the evidence.

c. courts have usually held that a will not lawfully revoked continues in legal existaence until the testator's death, and the word existence in the statute means legal existence. Or courts have held that a will destroyed without the testators's consent has been fraudulently destroyed.

Mistake in the Execution of a Will:

a. If there is a mistake in the execution, the will will normally not be admited to probate.

Courts do not correct mistakes in the execution. (strict rule)

a. False description of property or person - If the court can save the devise by striking words it will do so. Courts will not add words.

Mistakes in the inducement - A mistake in the inducement involves a mistake as to facts outside of the instrument itself.

(0) Courts ordinarily deny relief except possibly in the rare case where the will itself shows both the testator's mistaken belief and what the testator would have dne had the mistake not occured.

U.P.C.  2-302(b) - pretermited children

(0) if the testator fails to provide for a living child solely because he mistakenly believes the child to be dead, the child receives an intestate share in the testator's estate.

The construction of the will must be derived from the words of it, and not from extrinsic averment.

(0) While extrinsic evidence may be admitted to identify the devisee or legatee named, or the property descibed in a will, also to make clear the doubtful meaning of language used in a will, it is never admissible, however clearly it may indicate the testator's intention, for the purpose of showing an intention not expersesed in the will itself.

Conditional Wills:

a. Most of the cases presume the will is not conditional, applying the standard presumption against intestacy.

However, there are cases holding the will conditional when circumstances clearly indicate the testator so intended.

3. Summary:

Must have sufficient mental capacity to make a will

(0) Insane dilusion - will will not be admitted to probate unless we can get rid of the portion effected by the delusion.

Mistakes in the execution - normally not admitted to probate

(1) Misdescriptions - will correct if they can do so by striking words

Mistakes in the inducement - will not change unless will shows the mistake and what would have been done otherwise.

(2) Scriviners mistakes - courts will not correct except where they can strike out words.

Holographic Wills:

0. Defined: A will written by the testator's hadn and signed by the testator; attesting witnesses are not required.

The majority of states do not allow holographs, and the states that do recognize them require precise compliance with formalities.

a. U.P.C.  2-503 Holographic wills (this is the majority rule)

is valid if the material provisions and the signature are in the handwriting of the testator.

a. Some states require the entire will to be in the handwriting of the testator.

Some states will allow you to read the printed material for context.

(2) Other states require you read only the handwritten portion. You must from the handwriten portion come up with the testamentary intent.

A few states require the holograph to be dated.

C. Holographic wills:

Requirements for a holographic will:

a. UPC  2-503 - A will is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

Other states require that the entire holographic will be in the testators handwriting.

a. A few states require that a holograph be dated, with the full date of day, month, and year.

This is a useful practice in helping to determine which of two different holographic wills are controlling.

2. Problems with holographic wills:

The cases are split on whether a holographic will written on a stationers form can be probated.

b. In re the Estate of Johnson -- Held that there is a valid holographic will if the signature and the material provisions are in the handwriting of the testator. All of the type written material is ignored and the testamentary intent is searched for in the hand written portion. No testamentary intent found in this case where a stationers form is used. (Arizona Case)

Revocation of wills:

0. Revocation by writing or physical act:

All states allow revocation of wills in two ways:

(0) By a substitute writing executed with testamentary formalities; or

(a) expressly revokes the prior will or

(b) is contradictory to the prior will.

by a physical act such as destroying, obliterating or burning the will.

(a) Destruction of the document, and

(a) Intent to revoke.

i) Problem 1 p. 241 -- Dr O'Kennedy can destroy the will but it will not be effective since the person is not in his presence.

a) Since the letter does not express testamentary intent, then the revocation is not valid if he does not destroy the will.

ii) Problem 2

a) The 1975 document is a codicil because it just adds to or modifies the will. The revocation of a codicil does not revoke the entire will, it revokes only the codicil.

b) Once the 1973 document is revoked, all of the codicils that are added to it are revoked, unless the testator wanted the codicil to be independent of the will.

(b) Problem p. 242 Duplicate original wills:

i) There is a presumption that the testator has destroyed the will with the intention to revoke if the will cannot be found after the death of the testator. In this problem, the presumption would override the lawyers will

a) Why have a presumption - we assume that the testator would have placed the will where it could have been found if he intended for it to be in force.

(c) Problems p. 245

i) Judge coulling would have been liable but is that the way the law should handle it? why not form a constructive trust, rather than tax all users of legal services by increasing the costs of malpractice insurance.

ii) The writing of "cancelled" and then signing on the face is not sufficient as a cancellation. Must do an act such as crossing out. It would not be sufficient as a holographic will? No, no testamentary intent.

iii) Void written across the face of the original will would have been sufficient. Not sufficient if a carbon copy.

iv) in states where The physical act has to be performed in the presence of the testator, it must be so.

(d) Problems p. 246

i) By lining through the gift to one of the four named beneficiaries do you have a partial revocation by physical act? Yes under UPC.

a) Arkansas says no because it increases the amount to the other takers and you cannot do so without a formal will or a holographic will.

b) The arkansas rule doesn't make sense. When there is a partial revocation you will always have someone who gets more.

ii) If the statute says that you can't revoke by physical act you can't do it.

iii) What about partial revocation of a holographic will -- no problem since the whole will is in the handwriting of the testator.

iv) General rule about partial revocations: You can increase the residue and you can increase the intestacy by a partial revocation but you cannot increase a specific inquest by a partial revocation. (meant to avoid fraud)

UPC  2-507 [Revocation by writing or by act]

b. NOTE: The only proper way to revoke a prior will is by a subsequent will that unequivocally revokes all wills and codicils heretofore made by me.

Reason: Revocation by act is inherently ambiguous. To be legally effective, the act must be accomplished by an intention to revoke. This would require words or acts at the time of the testator destroying the document showing such intent. Oral testimony.

b. At common law if it is shown that the will was in possession of the testator before death, and that the will cannot be found after death, a presumption arises that the testator destroyed the will with intent to revoke it.

Duplicate original copies:

(0) In most states if the testator destroys one original with intent to revoke, both duplicate originals are revoked.

Thompson v. Royal, p. 242

a. Facts: The testator had a will and a codicil. In the presence of her lawyer and witnesses she asked the lawyer to destroy her will. The lawyer advised her to keep the will as memoranda in case she should want to make another will. The lawyer made a note on the back of the will and codicil stating that the will was revoked and was being kept only as a memoranda. The testator then signed the note.

Issue: Was the revocation effective?

a. Hold: No. there was intent but not the act itself. must do an actual act such as cross out through the text of the will.

Rule:To effect revocation of the will in any of the two manners specified by statute, two things are necessary:

(0) the doing of the act.

(a) This is where the court ran into problems. There was no physical act of crossing out.

the intent to revoke.

1. Partial Revocation:

UPC  2-507 and the statute of a number of states authorize partial revocation by physical act

c. Several states require a partial revocation to be done in an instrument, and will not allow an act to accomplish the partial revocation.

Reason:

(a) Cancellation of a gift to one requires someone else to take the gift, like all bequests this must be done in writing.

(a) Allowing partial revocation by physical act offers opportunities for fraud.

Dependent Relative Revocation and Revival:

0. Doctrine: IF the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth.

Example:The testator destroys his old will thinking that his new will is valid. If the court finds he would not have done so had he known the new will was not valid then the revocation is ineffective.

0. Revival of a prior will: Three groups of states:

Minority:First will is effective since a will is not effective until death.

b. Majority:First will is revoked by the execution of the second will -- two theories in different states:

Upon revocation of the second will the first will is revived if the testator so intends.

(a) UPC  2-509

A revoked will cannot be revived unless re-executed with testamentary formalities or republished by being referred to in a later duly executed testamentary writing.

b. Estate of Alburn, p. 248

Facts: The testator destroyed her second will believing that this would reinstate her first will revoked in the second will.

(3) Issue: Is the revocation of the second will effective?

Hold: NO.

(4) Rule: The Doctrine of dependant relative revocation applies: It is based upon the testators inferred intention. It is held that as a matter of law the destruction of the later document is intended to be conditional where it is accompanied by the expressed intent of reinstating a former will and where there is no explanatory evidence. Evidence that the testator intended the destruction to be absolute takes the case out of the doctrine.

The court here says that they can do one of two things: Which is it that most nearly approximates the testators intention:

(a) Can decide whether she would like to die intestate (this the court stated that she definitely did not want to do) or

(a) whether she would prefer the kankakee than to die intestate. (this is what the court decided, using the doctrine of dependant relative revocation)

How the court justifies the result of holding a later destroyed will valid.

) two elements necessary for physical revocation.

a) physical act

b) Intent

(a) The court holds that the element of intent was conditional in this case. That it was conditional on the effectiveness of the prior will that she thought would be reinstated.

the court had to do this because this jurisdiction was wed to the doctrine of non revival of revoked wills.

b. Problems P. 253

Probl. 2 -- T ---> $1000 to Charles Blake (typewritten will)

lines through the $1000 and makes it $1500 and initials it. Will the court recognize the holographic portion? Probably not.

(a) In states that do not recognize partial revocation of a will and it is impossible for you to read the will and find out what it says, then you have two choices:

(a) Declare the whole will revoked, or

i) When such a major portion of the will is missing that the testamentary plan is gone, then this will be the choice.

ii) Give effect to the entire will without the clause that was obliterated. (the effect is a partial revocation. Interesting no?)

(b) If the gift is decreased considerably, we are probably not going to apply the doctrine of dependent relative revocation in such a case because we are going to try to approximate the testators intent, and by applying the doctrine we would not be giving effect to the testators intent, so in a state where partial revocation is allowed, the court is likely to avoid the doctrine and hold the portion of the will revoked.

Problem #3 -- No John should not get it. The court is going to look at the intent of the testator, and the testator did not intend John to get anything.

b. Crosby v. Alton Ochsner Medical Foundation, p. 253 (1973)

Facts: The Decedents first will gave half the residue of his estate to his wife and the other half to the Alton Ochsner Medical Foundation. he latter wrote another will which expressly revoked the prior will, but kept the bestowal of the residue the same. He died within 90 days after making this second will. The state constitution holds that a devise to a charitable foundation made within 90 days of the death of the testator is void. (mortmain statute) The Children and wife of the testator seek to have that portion of the will declared void.

(10) Issue: Did the fact that the testator did not know that the second will would have the effect of making void a bequest to the charity, make the second will come under the doctrine of dependant relative revocation, and that such revives the third article of the prior will?

Hold: No. The revocation was final and the prior will could not be revived.

(11) Rule: Dependant relative revocation is only applied when the revocation is by a physical act because you are going to introduce evidence about the testators intent. When the revocation is written you do not introduce evidence about the testators intent because the writing shows the intent of the testator conclusively. The courts have decided that they do not correct testators mistakes. This is a kind of mistake.

(a) When the revocation is by physical act you must always introduce evidence to show the testators intent and once the door has been open you might as well open it all the way and therefore you can use the doctrine of dependant relative revocation. When the revocation is in writing you never open the door at all!!!

What are the limitations of use of the doctrine of dependant relative revocation.

(0) Mistakes in the inducement - normally no relief is given.

Dependent relative revocation - Only applies when there is a different and subsequent testamentary plan that fails, or when the mistake of the testator is recited in the instrument, or that the application of the doctrine better satisfies the testator's intention.

(a) Problems p. 259 1. When the testator later executes the codicil revoking devise to judy, thinking she is dead, then the doctrine applied since this was a kind of conditional revocation and is on the face of the instrument itself.

when there is instead of a revocation alone a substitution of a different legatee, since judy is dead, you don't know how the testator would have disposed of the property if he had been alive, therefore the doctrine doesn't apply.

You do not take the parol evidence if the will is unequivocal as to the revocation. I hereby revoke the legacy to judy.

This area on mistakes is the area that most people miss on the test. Should bone up on this before the exam.

0. Revocation by Operation of Law Change in Family Circumstances:

U.P.C.  2-508

e. Porter v. Porter, p. 260 (1979)

Facts: The testator in his will gave his entire estate to his wife, then to his step son, then to a charity, and specifically disinherited his own children. He and his wife get a divorce three years later. then he dies. His children bring suit to have the will declared void.

(1) Issue: Is the will void due to the divorce?

Hold: No.

(2) Rule: The testators intent is the controlling factor in determining the disposition under his will when circumstances have changed. (UPC is different)

Will states "to wife2 if survives, if not to wayne, if survives, if not to charity" Statute in this state states that gifts to divorced spouses are void. Question of whether wayne gets it since the ex wife is still alive. App. Ct says that he does. UPC 2-508 Takes care of this problem by stating that the spouse is treated as though she had predeceased the decedent.

f. Problem p. 267 #2 - Under the contract the ex wife is able to get to the life insurance proceeds since the statute refers to how the will is treated if there is a divorce not with the contractual relationship.

The statutes of the states do not cover these type of contingencies - when contractual relations pass the property to a surviving spouse.

f. Another revocation by operation of law -- Marriage subsequent to the execution of the will: UPC 20-301 - A spouse unintentionally omitted takes an intestate share (UPC 2-102). If they are intentionally omitted, the spouse still has the right of elective share under the UPC 2-201.

Another revocation by operation of law -- the failure of the testator to provide for children born after the execution of the will (UPC 2-302), the children born thereafter will get an intestate share unless you intentionally omit the children.

II. Components of A Will:

Integration of Wills:

0. Is the issue of which sheets of paper, present at the time of execution, comprise the testator's duly executed will?

Beale case:, p. 268

a. The court holds that the will was the original document signed, and not the two changed pages of the will.

Why not revoked? He wasn't present.

1. As a lawyer you should make sure that the testator signs every page of the document. Then no problem with this concept.

Republication by Codicil

0. f: Means an implied restatement or rewriting of the language o a valid will as of the time of the republication. courts have also allowed this doctrine to be used to revive an instrument that once had testamentary life but for some reason became void.

A codicil however, will not be allowed to republish a will where such updating would lead to a result contrary to the testator's intent. (See example p. 270)

1. Allows for a revoked will to be revived by resigning or revived by the signing of a codicil to the will that has been revoked. The old will is then republished as of the date of the codicil.

Incorporation by Reference

0. A non-testamentary document can be used to dispose of property if it is mentioned in the will itself.

Can be used to avoids the publication of the information of the disposition. A will becomes public but a trust does not. Some people, therefore, use a trust and then the will dumps the money into the trust (a pour over trust). The disposition of their property is therefore kept private.

(0) Many courts would not allow the trust to be modified after the will was made. This made the trust very cumbersome to change. Every time you modify the trust you must re-execute the will.

UPC 2-511 overcomes this problem by allowing a trust to be funded at the time of death and the trust can be modified after the date of the will without any problem.

(a) Use of a pour over trust under the UPC is not considered an incorporation by reference. It states specifically that the trust is not considered a testamentary trust. it therefore is not incorporation by will.

Simon v. Grayson, p. 270 (1940)

a. Facts: The Decedent wrote and executed a will. In the will he referred to a letter an $6000 that was to be distributed under the letter signed a certain day. No letter signed on that particular day was found but there was a letter distributing the $6000 dollars signed at a later day. A codicil was signed after the date of the letter.

Issue: Was the letter incorporated by reference in the will since the letter was written after the date of the execution of the will?

a. Hold: yes. The codicil republishes the will and allows us to say that the letter was in existence as of the time of the execution.

UPC 2-510 incorporation by reference

(0) The writing must be in existence as of the execution of the will.

(a) court overcame this due to the fact that the codicil had republished the will after the letter was in existence.

Describes the writing sufficiently to permit its identification.

(a) Though there are discrepancies in the description, the description was sufficient to allow identification and that is all that is necessary.

UPC 2-513 - Allows the disposition of personal property (household goods) by the writing of a secondary document by the individual.

a. This is a leap way beyond incorporation by reference. It deals only with household goods and is a big time and headache saver for lawyers avoiding the need to include a great deal of specific bequests for household items.

Johnson v. Johnson, p. 275 (1954)

a. Facts: The testator typed three paragraphs of a will. This he did not sign or have witnessed. He latter hand wrote a codicil on the bottom of the page and signed it. The codicil stated that the prior writings above were to be valid still.

Issue: What portion of the will was valid if any portion.

a. Hold: The whole will is valid by incorporation by reference.

This problem is an incorporation by reference problem, not integration or republication. The statements by the court that the type written portion of the will was a will without testation is clearly false.

b. The court is correct in the fact that this is an incorporation by reference, but what about the fact that the document is type written. doesn't that cause a problem when we are talking about a holographic will?

Some writers thing that we should not be able to integrate a typewritten document into a holographic will, however, most courts have allowed this.

H. Acts of independent Significance:

A testamentary disposition of property is valid even though the wording of the will leaves it in the testator's power to change the devise by an act of independent significance.

a. These acts must have a lifetime motive and significance apart from their effect on the will. Otherwise, will fail.

A will may allow the testator to alter the testamentary disposition by a non testamentary act. The will may say something like "I give everything in the desk drawer to my daughter." The testator can therefore change the devise by his acts without the protection of the statute of wills.

a. Such a clause will only be allowed if it can be shown that there is a lifetime motive and significance apart from their effects on the will.

Reason for the rule here: We are afraid that people knowing the contents of the will will loot the house or other place in order to change the testamentary disposition.

a. A safety deposit box is probably going to be upheld as opposed to the drawer. Less chance of it being looted.

See problems p. 282.

6. The gift in a will of the content of a house is generally considered to transfer only the normal contents of the house.

Pictures for the decoration of the house are transferred but not those that the artist is drawing. Not normally part of the contents of the house. Bank passbooks, cash, etc. are not transferred under such a transfer.

(0) contrast: if the will says that she transfers everything in a drawer, and a passbook for a savings account is in the drawer it passes. (does this make sense).

Termination of Medical Treatment

A. Living wills - the law is largely uncertain on the effectiveness of living wills. They have been upheld in some jurisdictions, but the uncertainty makes doctors reluctant to pull the plug fearing criminal or civil liability.

As a response many states have enacted death with dignity statutes that allow the patient while competent to execute a written statement regarding their wishes and signed in the presence of two attesting witnesses.

a. A few states require the person to sign such an instrument after the diagnoses of the terminal illness in order for it to be valid.

What is a person's own right to choose in the future to have the life supports to be disconnected ( a living will). The living will is a type of attested instrument that allows a person to tell what they want done if they are put in such a circumstance that they are being kept alive only by life support.

0. The big question in this area is whether there will be criminal or civil liability for the doctor or whoever who complies with the living wills requests. Most of the statutes take away such liability for following the living will.

Disposition of Decedent's Body:

A. All states have now passed the uniform anatomical gift act. This is once again meant to relieve the hospitals and doctors from liability for using the good organs so donated, so long as they act in good faith.

All fifty states have enacted some form of the Uniform Anatomical Gift Act. The act allows for the donation of the body or parts of the body to another person or persons in the event of death. This can be done in two ways.

0. As a part of a validly executed will.

By a separate writing or card signed by the donor in the presence of two witnesses who must sign the document in the donor's presence attesting.

A. The gift can be revoked in basically the same ways as a will, or if the document are in the hands of the donee by notice to the donee in the specified form. See p. 285.

WILL SUBSTITUTES

AVOIDANCE OF PROBATE

Contracts Relating to Wills:

A. A person can enter into a contract to make or not to revoke a will. Contract law applies.

If after the Decedent's death the contract was not fulfilled, then the promisee can get a constructive trust implied on the beneficiaries of the will.

1. Many states require contracts to make a will to be in witting.

If they are not in writing the promisee can still get quantum meruit. The value placed on the services by the promisor is evidence of reasonable value for services rendered.

a. U.P.C.  2-701 - Allows for contracts to make or not to revoke a will to be made in three ways only.

In the will itself, or

(1) the will must expressly refer to the contract and to extrinsic evidence proving its terms, or

a separate writing signed by the decedent must evidence the contract.

1. f: Joint will - one instrument executed by two or more persons as the will of both.

Tend to invite a claim of contract.

(0) This problem can be overcome by placing a statement in the will that there was no contract. Better to just right two wills.

f: Mutual wills - Separate wills of two or more persons that contain similar or reciprocal provisions.

2. f: Joint and Mutual Wills - A joint will that devises the property in accordance with a contract.

A contract not to revoke a will is not enforceable unless it is proved by clear and convincing evidence.

a. The mere execution of a joint will or of mutual wills does not give rise to a presumption of contract.

A contract not to revoke a joint or mutual will does not become binding until one party dies in compliance with the contract.

A. Oursler v. Armstrong, p. 294 (1961)

Facts: The Decedent and his second wife made mutual wills devising the property of each to the other if the other survived and to the four children of Decedent after the survivors death. After decedent died the D changed her will give the total estate only to the two children by their marriage excluding Decedent two children from a previous marriage. Those children sue.

4. issue: Was there a contract not to revoke the wills?

Hold: No.

5. Rule: The existence of a promise, express or implied, is a vital necessity; the mere fact of a confidential relationship is not enough.

To attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof. The same is true in the case of a constructive trust.

Rubenstein v. Mueller, p. 300 (1967)

0. Facts: The Decedent's wife predeceased him and he got all her property. They had a joint will that named each other as beneficiaries if surviving and a number of beneficiaries after the death of the survivor. Decedent remarried and changed his will. There is no question that the second will is void due to the agreement between the decedent and his first wife.

Issue: Is the second wife able to get an elective share despite the agreement?

1. Hold: No.

REas: The Decedent had only an interest in the property during life with the remainder to the named beneficiaries in the joint will.

a. Jurisdictions are in disagreement as to the outcome in this case.

When there is an agreement to make a specific bequest as opposed to the entire estate upon death, the testator make not make an inter vivos disposition inconsistent with the agreement. An agreement concerning the entire estate, does not preclude an inter vivos disposition since it does not necessarily destroy the intent of the agreement.

a. A testator may always under any circumstances dispose of property or its proceeds if necessary to meet the daily needs of life.

Contracts With Payable on Death Provisions:

A. Wilhoit v. Peoples Life Insurance Provisions, p. 306 (1955).

Facts: The decedent had received insurance money from the insurance company upon the death of her husband. She redeposited the money with the insurance company with the stipulation that she could withdraw the money on demand and upon her death Owens would get the money. He, however, predeceased her by a large number of years and she made a different disposition in her will. The insurance company refused to pay the money under the will disposition but paid it into court under interpleader. The beneficiary named in the will is against the heirs of the Beneficiary named in the contract with the insurance company.

1. Issue: Was the contract binding on the insurance company to pass the money saved with them to the heirs of the person named as the beneficiary of the account?

hOLD: No. this would be a testamentary disposition and had not been attested to.

A. U.P.C.  6-104 allows for a Payable on Death account but is only valid if the beneficiary survives the decedent unless there is an express intent to give the account to the heirs or estate of the beneficiary if deceased.

The majority of states hold that where the policy requires written notice of change of beneficiary filed with the insurance company, the beneficiary of a life insurance policy may not be changed by will.

0. States that allow a change by will protect the insurance company if it pays the beneficiary named in the policy before notice of another claim is filed.

Estate of Hillowitz, p. 312 (1968)

0. Facts: The decedent was a member of an investment partnership, and the provisions of the partnership agreement provided that upon the death of a partner the partners interest was to be given to the decedents wife. The executor of the estate brought suit claiming that this was an attempted testamentary disposition that did not conform to the statute of wills and was therefore void.

Issue: Was it?

1. Hold: No.

Rule: This type of an agreement is the same as a third party beneficiary contract, payable on death. they need not conform to the statute of wills to be valid.

B. U.P.C.  6-201 allows for payment or transfers at death by designating in the contract or written instrument who the thing is to be given to. It overcomes some of the earlier qualms with the use of other instruments to dispose of property upon death. (see p. 314)

Kinds of contracts which courts general find as testamentary and thus not valid

0. Provision in a promissory note that the payee will change upon current payees death.

Payment on a real estate contract to a different person

1. Payment on bonds at death to another person.

Kinds that are not generally considered testamentary: (doesn't need to be attested to be valid)

0. Life Insurance

Pensions and profit sharing

1. Revocable trusts

Annuity Contracts

D. U.P.C.  6-201 Changes all of the rules given above as to what is considered testamentary and what is not.

The language here is extremely broad. Any written instrument effective as a contract, gift, conveyance, or trust is considered non testamentary.

3. Creditors are still protected under this section. You cannot cut out creditors by use of this section of the code.

Exception: Generally

(0) Life insurance, joint tenancies, and joint bank accounts are usually exempt from creditors of the decedents.

(a) U.P.C.  6-107 - gives creditors rights to the proceeds of joint bank accounts if other assets insufficient.

Problem #2, p. 315 - Even though under the UPC you can legally do this, the brokerage accounts will not do it. The most difficult asset to transfer of all assets are stocks and brokerage accounts due to the brokerage rules, not the law itself.

VI. Joint Interests and Multiple-Party Bank Accounts:

Johnson v. Herrin, p. 318 (1978)

0. Facts: The decedent had two joint accounts which were used solely by the decedent and by the D only for the benefit of the decedent. THe will stated that all of decedents estate was to be divided equally. The P sues for the division of the joint bank accounts.

Issue: Is the will or the joint designation on the accounts to be given effect?

1. Hold: The will.

Rule: When joint accounts are established a presumption arises that the parties intended the monies as a gift to be paid to the survivor as owner.

a. This is a rebuttable presumption. The question to be asked is one of intent. The court should look at

Would the giving of the goods under a joint account be to contravene the testators plan as set out in the will.

(a) Are the Accounts the only asset.

Is the actions of the joint holder such as to show a belief that the account was not to be distributed to her at death.

(a) Were the funds used solely for the decedents benefit, etc.

The court holds here that these are not true joint bank accounts. Is the bank liable? No. Why?

a. Statutes in the states relieve the banks of liability for giving the money to one of the parties on a joint account, but the statutes are not meant to decide who ultimately has rights to the money (see statute at the top of p. 320)

Can Earline take the money out before the death of the decedent. And if she does does the estate have a claim against her for the money so taken out? No.

(0) The question is one of who actually owned the money during the decedents life time. The way we decide This is by reference to who put the money into the account. The law holds that the money is owned in proportion to the net amount deposited in the bank account. U.P.C.  6-103.

Real property is not the same. It is considered a gift if changed to joint tenancy.

(a) There are tax consequences of a change of real property to joint tenancy, it is considered a gift immediately. On the bank account there is no gift until the joint tenant takes the money out.

U.P.C.  6-104(a) - the surviving payee of a joint account is entitled to the balance "unless there is clear and convincing evidence of a different intention at the time the account is created."

G. U.P.C.  6-103 - "A joint account belongs, during the lifetime of the parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent."

Blanchette v. Blanchette, p. 323 (1972)

0. Facts: The husband had used some of his income to purchase stocks in his company. He had them designated in joint tenancy between he and his wife.

Issue: Does she have any right in the stocks before his death.

1. Hold: No.

Rule: The question of donative intent is one of fact. The burden of proof is on the person seeking to show that the transaction is not to be taken at face value.

2. The burden of proof that the transaction should not be taken on its face is on the claimant of such. Therefore, the presumption of donative intent can be overcome by sufficient evidence of a lack of intent.

Problems, P. 327

0. Payable on Death Accounts - the beneficiary has no access to the account until the death of the owner.

Some jurisdictions do not recognize these because they are testamentary in nature.

a. U.P.C.  6-104 - recognizes such accounts as valid.

Savings Account trusts (totten Trusts) are upheld as valid in all states. Just another kind of revocable trust.

0. The trust can be revoked by a will while the survivorship provision on a joint bank account will not be allowed to be revoked by the will.

U.P.C.  6-104(e) provides that a will cannot change either a joint survivor account, POD or Trust account.

1. Savings Account Trusts - totten trust accounts are recognized everywhere. It is a way around those situations where you cannot have a pod account.

Survivorship provisions on a joint bank account cannot be changed by the will.

a. U.P.C.  6-104(e)

Creditors cannot reach real property held in joint tenancy after the death of the decedent.

0. Creditors can reach trust accounts

U.P.C.  6-107 - POD, TRust accounts, and Survivorship accounts can all be reached by the decedent's creditors.

K. U.P.C.  6-104 - if a beneficiary of a POD or Trust Account predeceases the decedent, the heirs of the beneficiary get nothing. It is presumed that the depositor does not intend the beneficiary to receive anything unless he survives.

Deeds of Land:

A. The problem with deeds as a substitute for a will is that the deed must be delivered while the donor is alive. A dead person cannot deliver the deed.

Deeds on condition are troublesome and should never be used as a will substitute.

A. Three normal conditions placed on deeds: The courts analyze the problem as whether O intended presently to create an interest in A:

Deed not effective if A predeceases O.

a. Normally held valid. Is a springing executory interest. Gives a present interest in the property.

Deed not to take effect until O's death.

a. Also normally upheld as the reservation of a life estate. courts have often misconstrued this and the rule by looking for a present possessory interest rather than just an interest in the property.

This deed is revokable by O at any time.

a. courts split on whether it is valid or not.

A fourth situation arises when the delivery is to a third person, who is an agent. How the cases turn out depends on whether the third person is the donor's agent or the Donee's agent. If the donee's then the deed is valid.

B. Summary:

Revocable deeds: Held to be no delivery. No intention to create a present interest in the grantee.

1. Springing Interests: Split of authority whether valid or not.

Transfer with a reserved life estate: Valid everywhere.

VII. Summary of Ways to avoid probate:

Contracts -

C. Joint Tenancy -

Problem: Carry unintended consequences such as gift taxes, providing immediate ownership when not intended, and by having a distribution of property to one beneficiary when this is not the intent.

C. Deeds to real property: Problems of delivery - often makes it so that the decedent's intent is not carried out.

Other kinds of inter vivos gifts - effective but people are afraid of depleting their wealth and then needing it.

D. Power of Attorney - Document granting to the attorney in fact, power to deal with the grantor's assets during the life of the grantor.

These powers can be drafted narrowly or broadly.

1. Cannot execute a will

There is a dispute over whether the attorney in fact can exercise power that the grantor retained in trust.

2. The powers can be durable or non-durable.

non-durable - these are strict agency relationships and terminate upon incompetence by the grantor of the powers.

a. Durable - allows the grantor to grant the power of attorney to protect the grantor against a period of future incompetence. Does not terminate on incompetence.

All powers of attorney are destroyed upon death of grantor.

D. Trusts:

means of ownership of property where the ownership is divided into two parts.

a. Legal title in trustee, but

Benefits of property is in the beneficiary of the trust.

3. Can be revokable, irrevocable, or changeable.

Can be simple and oral, or very elegant.

4. In Uniform Probate States a trust is probably not going to be a good idea if that is your only object. (costs of transfer, shackles of having your assets in a trust)

There are people in the business of selling trusts

5. Trusts are good ways to protect against incompetency

If there is property in two states the trust avoids probating in two different states.

VII. Gifts of Personal Property:

For gifts of personal property to be valid the personal property must be delivered to the donee. Delivery may be made in a number of ways:

0. Actual delivery - always effective. Must be actually delivered if the object is easily deliverable.

constructive delivery - the delivery of something that gives the donee access to the gift.

1. Symbolic Delivery - the handing over of something that symbolizes the object. A writing of gift.

The overwhelming weight of authority does not allow for revocable gifts in personal property.

0. Exception - gifts causa mortis

CHAPTER 5

WILLS: CONSTRUCTION PROBLEMS

Admission of Extrinsic Evidence:

A. Plain Meaning Rule: A plain meaning in a will cannot be disturbed. The written language of the will is the best evidence of its meaning and the intention of the testator, and hence the intentions of the testator must be gathered from the language of the will itself, without the aid of extrinsic evidence, if it is unambiguous.

Most courts purport to follow this rule.

A. Estate of Russell, p. 340 (1968)

Facts: The testator gave her estate to the D and to her dog in equal shares. The law does not allow the devise of property to pets. P, testatrix's heir at law, sues for the half of the estate not taken by the dog, and not disposed of in a residuary clause.

2. Issue: Should extrinsic evidence of the testator's intent have been allowed into court to prove other than the latent ambiguities?

Hold: No.

3. This court rejected the plain meaning rule stating that it was going to allow extrinsic evidence to help them decide what the testator meant by what they wrote.

Patent Ambiguity rule: Cannot introduce evidence outside of the will to overcome this.

a. this court and almost all courts have rejected this rule. Now patent and latent defects are treated the same.

The reason that Gerogia gets it is the statute that states that if the gift lapses, the residuary takers don't get it but it lapses into intestacy. (contrast U.P.C.  2-606)

A. Latent and Patent Ambiguities:

Rule: General rule is plain meaning rule:

a. However, in the interpretation of a will, a court cannot determine whether the terms of the will are clear and definite in the first place until it considers the circumstances under which the will was made so that the judge may be placed in the position of the testator whose language he is interpreting.

If a will is ambiguous or uncertain, resort to extrinsic evidence is allowed in order to determine the intent of the testator. Such evidence will be allowed to resolve two types of ambiguities:

(0) Ambiguities arising on the face of the will - unclear etc.

(a) circumstances surrounding the execution of the will can be considered, excluding the oral declarations of the testator as to his intentions.

Latent ambiguities

(a) these fall into two categories:

i) Two or more persons or things exactly measure up to the description and conditions of the will.

ii) No person or thing exactly answers the declarations and descriptions of the will, but where two or more persons or things in part though imperfectly do so answer.

(a) Extrinsic evidence is always allowed to show that the seemingly clear language of the will contains a latent ambiguity.

Normally there is no liability for an attorney who drafts an ambiguous will. It would be difficult to determine whether the ambiguity was meant by the testator and would have the effect of making lawyers liable to write litigation proof wills.

A. Engle v. Siegel, p. 349 (1977)

Facts: The testators had a clause in their will that stated that if they both and their children died in an accident etc. that their estates were to be divided equally between their two mothers. One of the mothers predeceased them and then they both died.

1. Issue: Does the property go to the other mother only or to the heir of the predeceasing mother and the other mother.

Hold: to the heirs and the other mother.

2. Rule: Doctrine of Probable intent - "While the court may not, of course, conjure up an interpretation or derive a missing testamentary provision out of the whole cloth, it may , on the basis of the entire will, competent extrinsic evidence and common human impulses strive reasonably to ascertain and carry out what the testator probably intended should be the disposition if the present situation developed."

The statute in this case is like the statute in the UPC, the other residuary taker takes if one of the other gifts lapse.

3. This case is a clear departure from the clear meaning rule. The court hear states that they will try and divine what the testator would have done had the testator known about the situation. To apply you must show

First - that the will does not cover the specific contingencies. A gap in the provisions of the will.

a. Look to relevant and competent extrinsic evidence, and put themselves in the case of the testator and decide how they would have decided if they had provided for the specific circumstances.

This is the only court that has adopted this rule.

VIII. Lapsed Devises and Lapse Statutes:

f: lapsed gift - where there is a gift to a beneficiary in a will, and the beneficiary predeceases the testator. The gift is said to lapse.

B. Common law - lapsed gift goes to the residuary, and if a lapse in the residuary falls to intestacy.

U.P.C.  2-603 - The intention expressed in the will control. so if there is contrary language in the will, it will control over the anti lapse statute.

C. Anti lapse statutes apply to future as well as present interests.

Simultaneous death:

0. Uniform Simultaneous Death Act - treat simultaneous death as if the testator had predeceased the beneficiary. If they are joint tenants then you treat them as if each had predeceased the other. In other words you split the property down the middle.

This act requires that there be no sufficient evidence that the persons have died otherwise than simultaneously. What constitutes sufficient evidence.

a. This statute applies only if there is no evidence to show who died first.

This act applies to probate and non probate property.

0. U.P.C.  2-601 - the beneficiary must live for more than 120 longer than the testator in order for the beneficiaries heirs to take. Why:

The testators intention - This is a matter of intent of the testator. The testator would probably want the property to pass to his heirs if he knew that the beneficiary was going to predecease him.

c. This section only applies if there is a will. What happens if there is no will. U.P.C.  2-104 makes the same rule apply to gifts in intestacy.

Jackson v. Schultz, p. 358 (1959)

0. Facts: The Decedent had a will giving all his property to his wife, who predeceased him, "and her heirs and assigns forever."

Issue: does the gift lapse, the "and her heirs" being only descriptions of the type of fee being granted, or is such words a devise to her children if she should predecease?

1. Hold: to her children.

Reas: Turned on the word "and". And her heirs is words of limitation. Describes a fee simple absolute. Or his heirs would be effective as an alternate gift.

E. In re Moss, p. 362 (1899)

Facts: The testator devised the daily telegraph to his wife and Fowler in trust for life to his wife and after her death to Fowler and the children of his sister. Fowler predeceased him. then his wife died after him.

3. Issue: Who gets the property that would have gone to fowler?

Hold: The children of sister equally. They were a class.

E. Lapsed Gifts to Classes:

Moss Case

T ---> Wife for life --->Niece & sisters 5 children who reach 21

(2) (3) (1)

---> residuary wife ---> William

a. The children argue that the gift was a class gift:

Class Gift Rule: If a member of the class dies before the testator the gift does not lapse but is divided among the other members of the class.

a. How do you determine a class: When there is an intention that the gift is made to the group and not to the individuals in the group.

you focus on the intent of the testator. What did the testator intend.

(1) When you write a will identify that you are identifying a class or not a class. Use specific terminology.

U.P.C.  2-605 - a gift to a member of a class is saved by this anti lapse statute. It therefore will be passed to the descendants of the devisee that predeceases.

5. Problem of Lapse in the residuary:

Hypo: T ---> Residuary to A

B

C

(0) One of the persons in the residuary predecease the testator. What happened to the gift to them? Lapsed into intestacy historically.

(a) Reason was to keep the property in the testators family, and not to increase the gifts to the other members in the residuary.

(b) U.P.C.  2-606

Ademption:

A. Only occurs in specific real or personal property, not to general gifts.

McGee v. McGee

0. Facts: The testator devised 20,000 dollars to the plaintiff in this case, and all of her money in bank accounts to her children in equal shares. Her son who had power of attorney took the money out of the bank accounts and put them into savings bonds.

Issue: Is the devise to her children a general or specific devise?

1. Hold: Specific - devise adeems.

When you talk about ademption you are not talking about what the testator intended. Therefore, you don't allow in extrinsic evidence.

(0) Insubstantial changes will not be viewed to cause the property to adeem.

In re Estate of Harris, p. 375 (1979)

0. Facts: The Decedent devised her real property by the address and location to the legatees. The state condemned the property and she purchased another home, and died a month later.

Issue: does the home adeem? Are bank books personal property?

1. Hold: Yes. Yes.

U.P.C.  2-608 -

B. Ademption by satisfaction

Common law - if a lifetime gift is made to a beneficiary during the testators lifetime, it is presumed that it is satisfaction of a testamentary gift.

3. U.P.C.  2-612 -

Exoneration - if a debt is owed on a thing given to the beneficiary, does the beneficiary have to pay the debt or does the estate have to pay it?

0. common law - Estate has to pay it off, has to exonerate the gift.

Effect - reduces the amount of the residuary estate.

0. U.P.C.  2-609 - reverses the common law presumption, passes the debt on to whoever gets the property. The testator by specific language in the will can change this. A general directive to pay debts does not bring exoneration into play.

Abatement - occurs when a decedent gives away more than he has. Whos

0. U.P.C.  3-902 - order of abatement

Intestate gifts

a. Residuary gifts

General gifts

(0) A gift paid out of the general assets of the estate.

Demonstrative gift (in between specific and general gift) - a gift of a sum of money to be paid from a specific fund. To the extent that there is money in the specified fund, the gift is considered as a specific gift, if the fund from which the money is to be retained is not sufficient or there is none, to that extent the gift is considered a general gift.

(a) Example:

i) T ---> 25K Mary

---> swifty to John (worth 25K)

---> 25K billy from AT&T stock

ii) Estate actually has 20k, swiftly, and 10k of AT&T stock.

iii) Property to go in this way:

a) John - Swiftly

b) Billy - 10,000 AT&T stock + 7,500 in cash from cash.

c) Mary - 12,500 from the cash.

d) Formula: Put the total amount due them over the total amount due to all parties and multiply by the amount available.

Specific gifts

(0) A specific thing in the estate

Accretion:

0. Bostwick Case:

The Court adopts the majority rule: Absent a contrary showing of intent a legatee to stocks is entitled to additional shares that come about due to stock splits.

a. U.P.C.  2-607 - Stock splits go to the legatee as well as stock dividends. Cash dividends declared before the testator dies but distributed after the testator's death goes into the testator's estate.

Stock Splits and Stock Dividends:

A. Bostwick v. Hurstel, p. 383 (1973)

Facts: Testatrix devised 25 shares of stock to Bostwick. She devised all remaining shares to two nephews and a niece. the stock split twice before the testatrix's death.

1. Issue: Who gets the extra stocks?

Hold: Bostwick gets the other 125 shares of stock.

2. Rule: In the absence of anything manifesting a contrary intent, a legatee of a bequest of stock is entitled to the additional shares received by a testator as a result of a stock split occurring in the interval between the execution of his will and his death

CHAPTER 6

RESTRICTION ON THE POWER OF DISPOSITION:

PROTECTION OF THE FAMILY

Introduction:

A. Cannot totally disinherit your spouse:

Common Law:

a. Dower - an expectant interest in the husbands real property for which the husband had an inheritable interest. It was 1/3 of the interest in the property.

Courtesy - The husband has an expectant interest in all of the property of the wife.

1. Cannot transfer the property without the interest in a will. And cannot sell the property free of the spouses claim inter vivos without the spouses agreement.

Three kinds of allowances allowed in most states:

a. Homestead allowance: is superior to any claim of creditors or other claims. U.P.C.  2-401

Exempt Property claims: is also free of claims of creditors. U.P.C.  2-402

a. Family Allowance: Prior to creditors claims and other claims in the will. U.P.C.  2-403 and 404.

Has some good uses:

a. Avoid estate taxes in the very large estate.

Avoids the claims of creditors for small or bankrupt estates.

A. Kirksey v. Teachers' Retirement System of Georgia, p. 395 (1983)

Facts: The decedent had his father named as beneficiary of this retirement account should he die. He latter married and had two children, then died without changing the designation on the account. The wife got a years support but sued to have the beneficiary changed to her and her two children stating that the designation was testamentary in nature and also, that the account was subject to a years support award.

2. Issue: WAs the designation testamentary, and was the account subject to the years support award?

Hold: No, no.

3. The court holds that the statute that provides for protection against disinheritance in a will, is not effective against the designation of the retirement account.

Point: As a lawyer it is important to have in mind and find out about all of the assets of the person whose estate you are planning.

XI. Elective Share of the Surviving Spouse:

Forced Share or elective share has been enacted by statute in most states: usually is a 1/3 interest in all inheritable interest held by the spouse.

0. U.P.C.  2-201, 202, & 203

Testamentary Transfers:

0. In re Estate of Clarkson, p. 400 (1975)

Facts: The decedent left a will. In it he provided for his incompetent wife by creating a trust into which 1/4th of his estate was placed for her benefit. Her guardian elected against the will.

a. Issue: should the election be allowed even though the practical effect is the same?

Hold: yes. A fee simple interest is a better interest than the benefit of a trust.

(0) This case is bad law and bad policy. The result is identical and should have been left the way that the testator had planned it.

Minority rule: The best interest of the incompetent will be served by electing the method which is the most valuable to the surviving spouse. This usually means the one having the greater pecuniary value is the one selected.

c. Majority Rule: all the surrounding facts and circumstances should be taken into consideration by the court in order to make the election tot take under the will or against it. It is impractical to delineate the factors which would apply in every case or, in fact the relative weight to be given each in order to determine what is to the best interest of the incompetent.

Inter vivos Transfers:

0. The question arises whether a spouse can disinherit a spouse through inter vivos transfers (make it so that the spouse cannot get her elective share). The states divide into 5 different groups:

Group I (includes illinois and Mass.) - If the property has been validly transferred during life, thus removing it from the decedent's probate estate, the property is not subject to the survivng spouse's elective share.

a. Group II (ie. vermont) - an inter vivos transfer made with the intent to deprive the other spouse of his or her elective share is subject to the surviving spouse's elective share.

Motive or intent is the controling issue.

a. Group III - Any transfer in fraud of the marital right of the surving spouse is subject to the surviving spouse's elective share. (this has been rejected by most states) Factors to be weighed include:

Intent of the spouese

(2) completeness of the transfer

transferee's participation in the fraud

(3) the amount of time between transfer and death

the degree to which the surviving spouse is left without an interest in the decedent's property or other means of support.

a. Group IV - Illusory transfer test -- A transfer over which the tranferor retains a substantial quantum of ownership is deemed illusory and subject to the surviving spouse's elective share.

Group V - statutory states -- have legislated statutes that decide when transfers will be allowed to overcome the elective share.

(0) U.P.C.  2-201 - Right to Elective Share:

(a) A person domiciled in this state can elect against their spouse's estate. they will get an elective 1/3 of the augmented estate.

U.P.C.  2-202 - The Augmented Estate

0. Under the U.P.C., the surviving spouse may claim an elective share without losing any benefits under the decedent's will unless the decedent so provides by express provision in the will.

Section c. Community Property:

A. Fundamental Principle: Earnings of each spouse during marriage should be owned equally in undivided shares by both spouses.

Seperate property is property aquired before marriage or obtained during marriage by gift or inheritance.

1. When the characterization of the property is doubtful, the presumption is that the property is community property.

Couples that move from a common law state to a community property state:

0. In a common law state, all of the earnings of the husband are the husbands seperately and the wife is protected by the elective share.

When the couple moves to a community property state, the property is considered the husbands separate property and upon death, the wife would have no protection.

a. California and Idaho have made statutes to protect the spouse in such situations.

Couples migrating from a community property state to a common law state:

0. This does not change the pre-existing rights ofthehusband or wife.

Classification of assets as Commuity or Separate Property:

0. McCurdy v. McCurdy, p 423

Facts: The husband in a community property state had his estate named as the beneficiary of his life insurence policy.

a. Issue: are the proceeds of the life insurence policy community property or are they the seperate property of the decedent?

Hold: Seperate property if purchased before marriage.

b. Two rules:

Rule: The inception of title doctrine: Real property (later applied to other property as well) that is purchased before marriage, but a portion of the property paid for by community property after marriage is deemed the individual property of the individual.

(a) Rule: Life insurence proceeds have the same inception of title doctrine. The premiums paid out of the community property are reimbursed, rather than giving a proportionate share into community property.

Pro Rata Rule: The community property should benefit pro rata to the amount of community property payments made.

C. Transfers of the Entire community Property by one Spouse:

Givens v. Girard Life Insurence Co., p. 428

a. Facts: An insurence policy totally paid for by community property, the husband changed the beneficiary to a non blood relative.

Issue: Does the wife get half?

a. Hold: Yes.

Rule: The husband can, without the consent of the wife, make inter vivos conveyances of their community property and even moderate donations for just causes; but excessive or capricious gifts will be null, and alienations made with intent to defraud the wife, who will have action in all these cases against the properties of the husband and against the possessor of the things conveyed.

(0) Constructive Fraud: The widow establishes constructive fraud prima facie by proof that life insurence was purchased with community funds for the benefit of an unrelated person, and the beneficiary then has the burden to justify such use of community funds.

(a) If adequate provision is made for the surviving spouse, a gift to a relative, through life insurance or otherwise, is not considered fraudulent.

In Texas Another requirement has been added to the rule - that is that the conveyance cannot be illusory.

1. Widows Elective share: The husband or wife may place a clause in his/her will that makes the widow choose between taking under the will or taking their share of the community property.

This may have tax consequences, both gift and estate.

c. Commissioner v. Chase Manhattan Bank, p. 435

Facts: ???

XII. Section D. Pretermitted Child Statutes:

F: pretermitted Child: A child left out of the parents will.

D. Two types of pretermitted Child statutes:

Give protection only to children that are born or adopted after the writing of the will. (about half of the states)

a. See U.P.C.  2-302 Pretermitted Children

Others give protection to both the children living and addopted at the time of the execution of the will as well as those afterwards brought in.

a. In these states, any child not named in the will may bring suit under the statute.