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I intestate suceession A Share ef the surviving spouse 3 Share 131 children and mere remote descendants 1 Wills 1 Miepted children 2 Children born out of wedleck 3 HaifJsloods C Share of ancestors and toiletssis D Advaneements E Simultaneous death A Execution requirements 1 Governing isw 2 Wills complying with law of tiotniciie 4 iieiogrsphie wills 5 quotinterested witnesses B Integration of wills C Cedieiis D Inemporatioe by referenee E Feats of independent signi cance F Revocation I Bepeadent reistive reveestion 2 Revocation due to ehengeti circumstances 3 Revocation by physiesi set 4 ar iai revocation G Revival H Contractual wifis 1 Construction problems 1 Lapsed iegaeies 2 Atiemptien 3 Accretiens 4 Sstisfsetieo 5 Esoneration 6 Slayer statutes 7 Diseisimers 8 Sisneitseeees eesth 9 Abatement ii Classi cation of iegeeies and devises 11 Gifts ts cissses 12 Gifts to ebikireo and issue J Will co1te sts 1 Age requirement 2 Mental eapseity 3 Uedse iniiueoce 4 Fraud 5 Mistake 6 Mscontest eieoses 7 Stsn ing to contest K Nonprobate transfers 1 Inter vivos gifts 2 Joint tenancy 3 Tentative trusts sod psy o1 death seeeunts 4 Other neeprobate transfers L Powers and duties of persessl representative III Family protection child A Spouse s foreeti er elective shares 1 Size 2 Assets subjeet to share B Share of after boro or pretermitted C Homestead amt esem pt property 1 Limitations on eizsritsbie bequests IV Living wilis anti durable health care sewers 2 Execution requirements B Revocation C Imiiviciuels eligible to be agent or attorneyinfect 3 Authority of egeot or attorney infeet February 2006 Question 7 MEE Question 7 Dorothy had three children Abel Brandon and Carrie Abel had two children Grartdehild 1 and Grandehiid 2 Brandon had three ohildren Grandehild 3 Grandohild 4 and Grandohild 5 and Carrie had one child Grandohild 6 Following the deaths of at three of her children Dorothy was judicially appointed the guardian of all six grandchildren Dorothy raised all of the grandchildren in her home and loved them all equally Five years ago Dorothy gave 60000 to G139andohild 6 to help Grandehild 6 boy a new home The only statement Dorothy ever made regarding this payment was a eonternporaneous staterrient to Grandehiid 6 This is for you because I iove yon Dorothy made no other transfers to her grand ehiidren One year ago Dorothy executed a valid will providing I give my entire estate to my heirs said heirs to take the same shares thereof that they would have taken had I died intestate Three months ago Dorothy was visiting Grandehild 1 s home While Dorothy was working in the front yard Grandehiid 1 backed a car out of the garage and inadvertently albeit negligendy struck Dorothy Dorothy later died from the injuries Dorothy s only st1rvi39vo139s are all six grandchildren and one greatgrandchild who is a ehild of Grandehild 1 Dorothy left a probate estate of 120000 To whom should Dorothy s 120000 probate estate be distributed and what is the amount of each person s share Explain 10 February 2006 Question 7 Analysis DECEDENTS ESTATES LB LII 1116 ANALYSIS Legal Problems I Is the lifetime gift of 60000 to Grartdchild 6 art advancement 2 Is Grandchild l barred front sharing in Do139othy s estate by a slay er statute 3 To whom shouid the probate estate be distributed and what is each person s share DISCUSSION Suminaijy The transfer to Grandchild 6 is presumptively a gift not an advancement Grartdchild 1 is not barred from sharing in the estate because Grandchild 1 did not feloniously take Dorothy s life Thus Dorothy s estate is distributable to her surviving grandchildren The shares they take will depend on whether they take per stirpes or per capita under the applicable intestacy statute Point One 3040 There are potentially two reasons the gift to Grandchild 6 is not an advancement First the advancement doctrine is inaooiicahle when the decedent dies with a will Second under a tvnical advancement statute lifetime gifts are not an advancement absent evidence that the transferor intended them as such T l1e doctrine of advancements usually applies only to intestate succession See William Hquot McGovern amp Sheldon F Knits WIEtS Taosrs AND Esrsrss 26 at 66 2001 In states that fol low this rule the 60000 gift to Grandchild 6 would be ignored when computing the heirs share of Dorothy s estate However there is some authority for the proposition that the doctrine of advancements would apply if as here a will leaves property to the testator s heirs Id Furtheimore here Dorothy has expressly directed an i f SlE1tt3Stylt3 distribution Whether the 60000 would be taken into account in determ39inir1g Grandchild 6 s share of Dorothy s estate would depend on the applicable advancement statute Under the common law a lifetime transfer to an hair was presumptively treated as a down pay ment on the heiris intestate share In most if not all states todayquot a lifetime transfer is piassess to be a gift and is ignored in computing the heir s intestate share unless there is evidence to show a contrary intent See geraermfy UNIF PROBATE CODE 2 109 Here there is no evidence that Dorothy intended the 60000 to be an advancement 32 February 2006 Question 7 Analysis Point Two 1S 25 Grandchild 1 should not be barred frorn sharing in Dorothy s estate under the tvnical slaver statute because Grandchild 1 did not act with felonious intent Under the typical slayer statute an heir or beneficiary is barred from taking from the decedent if the heir or beneficiary feloniously and intentionally killed the decedent See eg UNIF PROBATE CODE 2 803h The typical slayer statute excludes accidental killings even if they amount to u1anslaughter Here Grandchild I acted both inadvertently and negligently and thus is not barred by the slayer statute NOTE lf an applicant concluded that Grandchild l would be barred by the slayer statute Grandchild l s forfeited share of Dorothyquot39s estate would be disposed of as itquot Grandchild l pre deceased Dorothy Here that would mean that Grandchild 39l s share would pass to Great Grandchild Grandchild i s child Point Three 4050 Assuininn both Grandchild 1 and Grandchild 6 share in Dorothv s estate all six cgrandchildrcn take equal shares if the estate is distributed to them per capita If the estate is distributed oer stir pes the same six grandchildren receive the entire estate but in different amounts Under either svstetn Great Grandchild takes nothing Dorothy s will incorporates by reference the state intestacy scherne Thus the distribution of the estate is determined as if Dorothy died intestate State laws differ regarding the distribution among issue where the decedent died intestate Marty states make the initial division of shares by computing the number of the decedent s children who had either survived the decedent or who left issue who survived In such states the initial division would be into thirds per stirpes sys tern in many other states including Uniform Probate Code states the initial division is niade by counting the nnrnber of heirs at the generational level at which there is at least one living me1 n her per capita per generation system Here that would be six since the first level at which there are surviving descendants of Dorothy is the grandchild level Taking the latter Uniforrn Probate Code approach first since no advancenient was made to Grandchild 6 see Point One that grandchild shares in the estate in addition Grandchild 1 is not barred by the typical slayer statute because he did not intentionally talce Doroti1y s life See Point Two Thus under the latter approach all six grandchildren take equal 20000 shares of Doroth s estate In those states that initially divide the estate into thirds Dorothy s estate would be divided into three 40000 shares Abel s two children would be entitled to split l3 of the estate taking 20000 each Each of Brandorfs three children would be entitled to N3 of a 40000 share and Carrie s 40000 share would pass entirely to Grandchild 6 Great grandchild the child of Grandchild 1 takes nothing because Grandchild l is entitled to take a share ofDo139othy s estate and in all states a remote descendant is excluded from inheriting when that descendant s ancestor survives 33 Fsbruaiy 2006 Question 7 Analysis NOTE The forezgcaing discussion assumes that no advancement was made to Grandchiid 6 and that Grandchild 1 was am barred by a slayer statute if an applicant made other assumptions the applicalzt should be expected to have a differaat analysis to Point Three 34 July 2006 Question 3 MEE Question 3 In 1995 Husband and Wife duly executed a joint will which provided in relevant part Each of us agrees that when one of us dies all of our property shall be dist139ibnted to the survivor Furthermore upon the death of the survivor we agree that 1 1000 shall be distributed to the person who is then the pastor of the First Avenue Church 2 1000 shall be distributed to the person named in a rnerno139andu1ri that the survivor shall leave in our safe deposit box at the Main Street Bank and 3 at the survivor s death the rernainder of the su139vivor s property however acquired shall be distributed to our child Child When this joint will was executed George was the pastor of the First Avenue Church In 2000 Husband died His estate of 1 50000 was distributed to Wife pursuant to the joint will in 200 Wife inherited 200000 from her sister In 2002 Wife duly executed a new will pi39oviding in relevant part Upon my death I give 1 1000 to the person who is then the pastor of the First Avenue Church 2 1000 to the person named in a Ineinorandurn to be left in my safe deposit box 3 100000 to ray child Child and 4 the balance of my estate to my boyfriend John who has provided me with loving companionship since my late husband died ln late 2003 Wife died leaving an estate valued at 400000 A ir1emorandu1n dated February 2 2003 and signed by Wife was found in Wife s safe deposit box directing that 1000 be distrib uted to her friend Robin Wife was survived by John Robin Child George and Ted who had been appointed pastor of the First Avenue Church one week before Wife lied Wifequots 2002 will was duly admitted to probate To whorn should Wite s estate be distributed Explain 39 July 2006 Question 3 Analysis DECEDENTS ESTATES lIE lI39lI ANALYSIS Legal Problems 1 Did Husband and quotWife have a contractual will such that Child is entitled to receive the portion of Wife s estate bequeathed to Child untler that joint will 2 Does either the doctrine of facts of independent significance or the rule that wills speak at the time of death apply to save the bequest in the 1995 will to the pastor 3 Is Robin entitled to the 1000 bequest notwithstanding that her sta tus as a bene ciary was evidenced by an nnattested writing DISC USS1ON Seminary Wife s estate should be distributed as follows 1000 to Ted pastor ofFirst Avenue Church and the residue to Child Child is a contract creditor of the Wife s estate because Wife and Husband signed a contractual will in 1995 Robin is entitled to notl1ing because the attempted bequest to her was evidenced by an nnattested writing John who would have been entitled to the bulk of Wi39l e s estate nnder the 2002 will takes noth ing because Wife s entire estate is exhausted by the claims of Ted and Child Qlohn would take from Wife s estate only if the 1995 will was not contractual and the 2002 will could not be successfully contested Point One 340 The joint will executted by Husband and quotWife constituted their contract that the survivor would not cltange their joint plan for distribution of their assets As a result Ted and Child can enforce the provisions of the 1995 will withoiit contesting the 2002 will Although the existence of a joint will does not by itself establish the existence of a contract between the two testators to dispose of their property in a certain way a will contract is created when the joint will includes material provisions of the contract or has language in it that refers to a contract between the testators UMP PROBATE CODE 2S14 Here the language of the joint will each ofos agreesquot99 39should be inoretlian sufficient to establish the aasteace of a contract between Husband and Wife to dispose of the property in a certain way The contract becarne irrevocable upon the death of Husband See 1 William J Bowe amp Douglas W Pat39llter Pace on rtis Law or W139LLS 102 1960 hereinafter Pass on W1L1s On the death of one party leaving in effect a will which contains the provisions prescribed by the contract the transaction is said to becotne an irrevocable contract as to the snrviwrquot see also 53 July 2006 Question 3 Analysis Estate of Wiggins 360 NYS2d 129 App Div 1974 Because the terms of the contract mandated that Wife the survivor distribute all of her property in accordance with the joint plan of distribution Wife was obligated to distribute not only the couple 39s joint property but also the property she acquired after 39Husband s death in accordance with the will contract as reflected in the 1995 joint will The will contract does not by itself invalidate Wife s 2002 will quotInstead the will contract intakes the beneficiaries under the joint will contract creditors of Wife s estate See 1 PAGE UN WILLS 103 Here the contract required distribution of the entire estate to the beneficiaries of the joint wiil As a result although the 2002 will would properly be admitted to probate the beneficiaries under that will would take nothing rather the entire estate would be paid to the creditors Child and Ted see Point Two under the prior will if applicants conclude that the phrase each of us agrees does not suff1cientIy state contractual intent then the 1995 will wouid not be contractual and would be revoked by the 2002 will to the extent they were inconsistent Therefore Ted wouid take 1000 Sea Point Two Child would take only 100000 under the 2002 will and John would take the residue Point Two 2038 Under either the doctrine of facts of indeoendent sianificance or the aeneral rule of construction that wiils speak at the time of death Ted the current pastor of First Avenue Church takes 1000 In general a testator must identify lzweneiiciaries in the will itself a testator may not change will beneficiaries without testamentary formalities The doctrine of facts of independent significance however gives effect to a will provision that disposes of property by reference to acts and events that have signi cance apart from their effect upon the dispositions made by the will UNH4 PROBA l I39 CODE 2512 see also 2 PAGE UN WILLS l934 The principle behind the doctrine is that the possibility of undue in uence or fraud is reduced when the change in bene ciary has sig nificance apart from the change in the testator s will Hence since the church was unlikely to choose its pastor in order to assure that the pastor chosen would inherit 1000 from the estate of Husband and Wife that factthe paster s identity has significance apart from the bequest Hence the doctrine would give effect to the 1000 bequest to the then current pastor which was Ted not George By contrast the rneinorandurn in the safe deposit box directing that 351000 be distributed to Robin cannot be given effect under this doctrine because that metnorandurn had no purpose independ ent of an attempt to make a bequest See 2 PAGE ON WILLS 1934 at 122 see also Point Three The bequest to the pastor also is effective under the general rule of construction that a will spea1lts 39 as of the tin1e39of death and at that time Ted is theonly person qualifying for the bequest to the pastor of the First Avenue Church liOTE Applicants could reach the same result using the so called plain meaning rule quotUnder this rule Ted takes because the words in the will are unambiguous that the bequest passes to the church pastor who survives Wife 54 July 2006 Question 3 Analysis Point Three 2039 The 1000 bequest to Robin is invalid because it is not evidenced by a testatnentaifv instrument While a will may incorporate an atternpteci bequest in a doeurncnt not executed with the fennel ities required of a will here the attetnpted bequest to Robin in such a document is invalid because the incorporation by reference doctrine requires that the document to be incorporated be in exis tence at the time the will was signed Here the document to be incorporated was executed after both the 1995 and the 2002 wills were executed Furt1quot1erinore even if the jurisdiction had adopted a statute like Unitquot Pro oate Code 2513 the bequest would still be invalid That statute permits tangible personal property to be disposed of in accordance with the terms of an unattested ineinoranduin without regard to when it was ete cuted However 2513 appiies only to tangibles here Wife attempted to bequeath Rcbin money which is not a tangible Lastly this bequest cannot be sustained under the doctrine of independent signi cance because the rr1erno139andu1n s only signi cance was to make a testanientary gift NOTE Applicants who assume that the tneiucranduin is in Wife s handwriting and that hoio graphic works are valid under state law could conclude that the 1000 gift to Robin was valid However no facts state that the inetnoranduni was in Wifequot39s haudwriting 55 February 2005 Question 5 Question 5 in 1991 Testator vaiidly executed a typewritten will its dispositive provision provided that l I give 10000 to Cousin 2 I give Blaekacre my family home to Sister 3 I give the residue of my estate to University my aiina mater Three months after executing this will Testator desiring to increase the bequest to Cousin seratohed out Item 1 in its entirety and immediately above it wrote in by hand i give 100000 to acetates This handwritten 100000 bequest was not witnessed In 1994 Testator sotd Biaekacre the family home and reinvested the entire sales proceeds in Whiteaere which became Testator s new family home i In 1994 one month after buying Whiteacre and following a heated argument with Cousin 39 Testator validly executed two copies of a new typewritten will that ieft his entire estate to University Testator then put both executed copies of the 1994 will in his safe deposit box where the 1991 will was also located In 1999 Testator and Cousin reconciled Immediately thereafter Testator went to the safe deposit box and removed one of the eseeuted copies of the 1994 will In the course of reviewing it Testator had second thoughts about leaving nothing to Cousin However rather than executing a new will he tore up that copy of the 1994 will in the presence of his neighbor and stated I feel better now Cousin is taken care of Last year Testator a domiciliary of State A died teaving a substantial estate including Whiteaere Both the 1991 will with the handwritten changes and the remaining executed copy of the 1994 will were found in Testator s safe deposit box Both Cousin and Sister survived Testator Under State A intestaey law Sister would be Testatofs only heir State A also has a statute providing The revocation of a will that revoked an earlier will revives the earlier wilt in the absence of a contrary intention State A does not permit holo graphic wills What if anything are Cousin and Sister entitled to receive frotn Testator39s estate Explain February 2005 Question 5 Analysis DECEDENTS ESTATES llFl3 ll3 lll ANALYSIS Legal Problems 1 Does the physical destruction of one executed copy of the l994 will done with the intent to revoke effectively revoke the 1994 i will if the other executed copy has not been physically destroyed 2 Is the 1991 will revived by the revocation of the 1994 will 3 Assuming the 199 will is revived is Cousin entitled to 100000 10000 or nothing 4 Assurning the 1991 will is revived did the bequest to Sister adeem IQISCLJSSIQN Stnnrnary 39lquotestator s 1994 will was revoked by physical destruction even though only one of the two executed copies was physically destroyed because in doing so Testator intended to revoke the 1994 will Under the State A statute revocation of the l994 will revived the 1991 vvill Under the 1991 will 10000 passed to Cousin because the handwritten cancellation of that bequest was conditioned on the effectiveness of the 100000 bequest However the 100000 bequest cannot be given effect because it was not witnessed Furthermore while under the common law the bequest to Sister adeerns in some states Sister is entitled to Whiteacre the replacement property for Blackacre If an applicant concludes that the 1994 will was not revoked because there was one remaining executed copy Cousin and Sister take nothing 39 Egt ne Testator s 1994 will was revoked by the physical destruction of one of two 2535 executed copies of that will All states permit the revocation of a will by physical destruction if that act is accompanied by an intent to revoke See generoiiy Uniform Probate Code UPC 2507 If Testator had not execut ed the r1994 will in duplicate there vvouldbe noqoestion that it was revoked because thefaets evidence both a physical destruction and an intent to revoke However the 1994 will was executed in duplicate and the physical destruction of one copy may have been motivated by a desire either to revoke the will or to revoke only the copy While the matter has not been considered in all states the prevailing view is that the revocation of one copy presumptively revokes the will See eg In re Beats W511 107 NYS2d 626 NY Snr l95l In re Estate of Metres 694 P2d 1325 Kan Ct App 1985 The proponent of the copy of the will 26 o ou February 2005 Question 5 Analysis that was not destroyed must then prove that Testator did not intend to revoke the will Here Testator s statement accompanying the destruction of one copy as well as the other surrounding facts suggest that Testator intended to revoke the 1994 will forthe purpose of reviving the i991 will Thus Testator would not have intended the other copy of the 1994 will to remain in effect Point Two Under the State A statute the 199i will was revived l1Lthe revocation of the 5 15 l994 will because there is no evidence that Testator did not intend a revival of the earlier will The State A statute provides that the revocation of a will that revoked an earlier will revives the earlier will in the absence of a contrary intention Here the facts support the conclusion that Testator by revoking the 1994 will intended to revive the 1991 will In particular when r 3Vl ing the 1994 will Testator made reference to the fact that by revoking the 1994 will Cousin would be taken care of That result would only be true if the 1991 will were revived Given that intent and the statutory directive the 1991 will is revived Point Three Under the doctrine of dependent relative revocation Qousin is entitled to 8545 10000 Cousin is got entitled to 100000 because that intended bequest was made bv art unattestcd act On the assumption that the 199 will was revived the question arises whether Cousin takes 100000 as Testator likely intended 10000 under the doctrine of dependent relative revocation or nothing because the typewritten bequest to Cousin was revoked by cancellation While Testator may well have intended Cousin to take l00000 as evidenced by the handwriting or the will and the statement accompanying the revocation of the 1994 will since State A does not permit holographic wills that writing cannot be given effect as a valid will or codicil because it was not witnessed While the facts do not state what the State A statute requires for execution formalities all states minimally require two witnesses to create a valid will unless they permit holographic wills 39 Given that Cousin cannot take the 100000 the issue arises whether Testatofs scratching out of the 10000 bequest to Cousin results in the revocation of that bequest under the typical revoca tion statute Under the doctrine of dependent relative revocation the physical revocation of a bequest can be ignored 8A evidence eyislS to suggest that the tcstator revoked that bequest on the mistaken assumption that some other bequest would be effective See generally William M McGovern amp Sheldon F Kurtz WILLS TRUSTS AND Estates 53 2d ed 200i Such evidence appears here not only from the fact that immediately above the scratching out of the bequest appeared the words of the greater albeit ineffective bequest but also from the statements Testator made to his neighbor regarding Cousin when the 1994 will was revoked if the doctrine does not apply how ever their Cousin takes nothing because the 100000 is ineffective as a bequest and the 10000 bequest was revoked by cancellation 27 February 2005 Question 5 Analysis Point Four Under the common law the bequest to Sister adeemed although some states 1 1525l have statutes subs1itating the new home for the home that was sold An adeinption of a bequest occurs when the subject of a speci c devise has been sold by the tea tator between the time the will was executed and the time the testator dies See generally McGovern amp Kurtz szrpra 81 2d ed 2001 In re Estate ofBrowri 922 SW2d 605 Tex App 1996 devise of family home at speci ed address adeeined where home at time will was signed was not the home at time of testatorquots death The theory behind ademption is that a tcstator knowing of the disposition of the speci cally devised property could execute a new will to take account of that disposition if the testator wanted some substitute bequest to pass to the bene ci ary Absent the execution of a new will Testator presumably does not intend the beneficiary to take any substituted property Some states however have adopted statutes that substitute scwcalled replacement property for the speci c property disposed of by the testator For example 2606 of the Uniform Probate Code UPC provides that a speci c devisee here Sister is entitled to any property acquired by a testator as replacement property for the property that the testator sold The facts support the conclusion that Whiteacre was acquired by Testatot as a substitute for Blackacre Thus under the UPC or a similar statute Sister would be entitled to Whiteacre Absent such a statute Sister would be entitled to nothing under the common law In the absence of a statute a court might also reach the same result by noting that the will re eets the intent to devise Sister the family home arguably without regard to whether the family home was Blackacre or Whiteacre 28 39 39 3939 39 H 39439Iu2 ntltwelouo lu1 39ugt Question 1 Ten years ago Testator purchased an insurance policy on his life from Insurer The policy pro vided that insurer would pay the proceeds oniy to the person named on a beneficiary form tiied with insurer Testator tiled such a form with Insurer naming his son Satn as the sole bene ciary I A year later Testator concerned about his faiiiog physics health opened Account 1 at Bank in the name of Testator and Sara as joint tenants with right of sttrvivorship not as tenants in coraraori Testator thereafter gave Sam checks that would enable him to withdraw funds from Account 1 Testator was the orriy person who deposited funds into Account 1 and he received all statements relating to it Five years ago Testator doiy executed a wiil containing the following dispositive clauses 1 I give the proceeds of my Insurer life insurance policy to my daughter Doris 2 I give Account 1 at Bank to my daughter Doris 3 I give the balance of my estate to the children of my son Sam to be divided equally among them a Three months ago Testator died and his will was duly probatcd Testator was survived by Sam Doris and one of Sarrfs three children Two of Sarrfs children predeceased Testator One of the predeceased chiidren Ann died seven years ago and the other Bill died two years agoAr1n had a child who survived Testator and Bill had a child who survived Testator Testator was a domiciliary of State A State A iavv provides that if a bene ciary who is a descen dent of the testator predeceases the testator the beneficiary s surviving issue take the share the deceased bene ciary would have taken had the beneficiary survived To whom should the life insurance proceeds Account 1 and the balance of Testator s estate be distributed Explain 37 Joly 2005 Question I July 2005 Question 1 Analysis DECEDENTS ESTATES lIK2 IlK4 181 ANALYSIS Legai Problems 1 Can an insured Change a life insurance bene ciary designation by will 2 Does a joint tenant who deposited all funds into a joint tenancy bank account retain the right to bequeath this asset to an individual who is not the surviving joint tenant 3 With respect to the state lapse statute a Does it apply to class gifts If yes 13 Does it apply to class members who died before the testator executed his will c Does it apply to class members who predeceased the tests tor but were alive when his will was executed DISQ QUSSION Summary The life insurance proceeds should probably be distributed to Sam because a ben e ciary designation cannot in most states he changed by will The joint tenancy bank account should be distributed to Sam unless it is established that in creating the joint tenancy Testator intended to give Sam clieckcwriting privileges instead of an ownership interest In some states evidence of such intention would be snf cient to void the joint tenancy Sain s surviving child is clearly entitled to share in Testator s estate whether Sarn s deceased children also share depends on whether the state lapse statute applies to class gifts and if so whether it extends to class members who died before Testatorquots will was executed Point ne in most states a life insurance beneficiary designation cannot be changed by l 020 will Thus the insurance proceeds are probably payable to Sam In most jurisdictions life insurance proceeds are payable to the beneficiary named in the benefi CiiiI39r39dBSigH3ti0H form filed with the insurance company even if thequotinsured names a different bene ciary in a laterexecuted wiil This rule is typically justified as a matter of contract as in this case life insurance policies generally provide that policy proceeds will only be paid to a bene ciary named on an appropriate form filed with the insurance company other possible methods of changing a bene ciary are thus quotviewed as being excluded by the insurance contract See generally Cool 1 Equitable Life lssnronce Sociezjr ofthe US 4128 NE2d 110 Ind 1981 47 July 2005 Question I Analysis lrlovvever some courts have rejected the majority rule on the grounds that the requirement that a bene ciary change be evidenced by a form filed with the insurance company is for the exclusive benefit of the company quotThese courts permit an insured to change a beneficiary designation by will if his instnance company does not object See eg Barker v Mon 733 P2d 673 Aria l986 If State A has adopted this minority approach the insurance proceeds would pass to Doris under the terms ofTestator s will NOTE An applicant need not describe both the majority and minority approaches to receive cred it The revocability of a life insurance beneficiary designation by will does not appear to be addressed by any state statute Point Two The survivingtenant of a joint bank account is ordinarily entitled to the account 3040 balance on the death of the other tenant Some states would distribute the account balance as part of the deceased tenants probate quotestate if the evidence showed that the eceased ten nt created he 39oint tenanc for his own c venience and had no intent to give the surviving tenant an ownership interest Ordinarily a bank account in the name of A and B as joint tenants creates a right of survivor ship Upon the death of one tenant the survivor takes the entire account balance See Unif Probate Code UPC 6 2l2 amended 2003 Where a joint tenancy was created merely for a depositors convenience for example to give the other co tenant checlevvriting privileges some courts will set aside the joint tenancy if the evi dence shows that the depositor intended to convey only a power of attorney to write checks The UPC has adopted this approach See UPC 6212 crnt Other courts invariably affirnl a joint ten ancy relying on the paroi evidence role to exclude evidence of the depositor tenant s intentions See William M McGovern Jr 8 Sheldon F Kortz Wttts Tausrs AND Esnrres 63 3d ed 2004 Bieleclci v Boissel 715 A2d 571 R1 1998 And even among courts that permit a joint tenancy to be set aside some require clear and convincing evidence of the depositor tenant s intentions See Franklin 1 Anna National Bank 488 NE2d Ill Ill App 1986 In this case there is no direct evidence that Testator intended to convey only checkvvriting priv ileges in Account 1 That Testator made all deposits and received all statements demonstrates nothing about his intentions nor does the fact that Testator was concerned about his physical health However one might infer an intention to create a convenience account from 39l estator s belief that he could bequeath this asset by will Thus Sam would prevail in a state that disaliovvs evidence of depositor intentions and in a state that requires clear and convincing evidence to overturn a joint tenancy designation it is possibie that Doris ivouidprevail in a state that permits a joint tenancy designation tobe overturned by a preponderance of the evidence A constructive trust theory hassometirnes been utilized to award a joint tenancy bank account to the bene ciary named in the depositor tenants will Under a constructive trast approach Sam would take the account but would hold the balance in the account in trust for Doris However the imposition of a constructive trust ordinarily requires evidence of misconduct and there is no evi dence of wrongdoing by Sara Id 48 July 2005 Question l Analysis Point Three The children of Ann and Bill can share in the residuary estate only if the shares 30 10 they would have taken had they survived Testatogpass to their issue under the governina lagse statute This determination will depend on statatorv iotemretatig n The State A lapse statute provides that if a bene ciary who is a descendant of the testator pre deceases the testator the beneliciary s surviving issue take the share the deceased bene ciary would have taken had the bene ciatjy survived The statute is sileat regarding its application to class gifts and if it applies to class gifts whether it also applies to persons who died before the execution of the will creating a class gift At common law a gift to a class such as a group of persons related to each other through a common ancestor implied a sttrvivorship condition with the result that only those class mernhers who survived the testator shared in the gift Under the common law approach only Sanfs surviving child would take the balance of Testatofs estate Some states with iapse statutes that do not specify whether they apply to class gifts utilise the common law approach Most state Lapse statutes either expressly or by judicial construction do apply to class gifts In these states Bii1 s child would take the share that Bill would have taken had Bill survived Testatot because Bill was alive when Testator s will was executed See McGovern dc Karts supra 83 at 332 However even when a lapse statute applies to class gifts some states by statute or case law refuse to extend its reach to persons like Ann who predeceased both the testatot and the exe cation of the testator s will The theory behind such a iirrtitation is that because the testator would have known that such person was dead when the testator executed his or her will the testator would not have intended to include either the deceased person or that persotfs issue in the class gi unless the testator speci cally made such a bequest in his will The 1990 UPC takes a different approach antidapse protection is extended even to potential class members who died before the class gift was created See UPC 2603b2 The UPC approach is based on the View that testators would not typically want to exclude the family line of a deceased class member Under this approach the children of both Ana and Bill would share in l estator s residuary estate a 49 February 2004 Question 1 Question 1 in l995 Testator age 85 executed a will in the presence of two witnesses immediately before signing the document Testatofs attorney asked Testator if she deciared the instrument to be her will Testator responded You bet it is I want Charity to have everything My family has enough Then the attorney had Testator sign the document on the line provided for her signature The two witnesses signed immediately below Testators signature without any further direction or comment from Testator W hen Testator executed this will she was suffering from cancer and her medications made it very difficult for her to remember facts For example when she executed her will she knew correctly that her estate was worth 500008 and that she had previously made large gifts to her child and some of her grandchildren However she could neither remember the nanre of her stockbroker nor recount the names of her stocks under herstockbrollter s management Also she had no diff i culty correctly naming her child and all of her grandchildren but she could not recall that she had a great grandchild She also knew she owned both a home and a condominium but could not recali the precise street address for either residence Testator died in 2002 survived by her only child Mary and by three grandchildren and one great grandchiid all of whom are descendants of Mary Testator s will which devised her entire estate to Charity was tirneiy offered for probate by Bank the executor named in the wiil Mary and one of her children Grandchild have initiated a timely contest of the will Governing state law provides that a will is properly executed if the testator signs the will in the presence of two witnesses after having a declared the instrument to be her will and la request ed the witnesses to act in such capacity a 1 Do Mary and Grandchiid each have standing to contest Testators will Explain 2 On what theory or theories other than undue in uence might a person with standing con test Testator s will what defenses might Bank as executor assert and what is the likely outcome Explain Felmtary 2004 Question l Attalysis DECEDEl lT S ESTATES ILA lIJ Question 1 Analysis Legal Problerns 1 Do ivlarg39 and Grandehild each l1 t39E standing to contest quotlestatofs will i 2 Can Testatofs will be suecessfoll eohtested on the grounds of a lack of mental capacity b lack of due eaeetttioh DIS JUSSION Surhmaryj Mary has standing to contest the will because if the will were denied probate she would be Testator s sole heir On the other hand Grandehild lacks standing to contest the will because if the will were denied probate Grandehild would not be entitled to any share of Testatorquot s estate Mary who is entitled to eohtest the will is not likely to be SL1CCf3SS 1l on the ground of lack of roental capacity but might prevail on the ground of lack of due execution in states applying the strict compliance doctrine Point One Mary has standiua to contest the will However Grandehild does not have stand 20 30 ing to contest the will Wills can be contested only by persons who would be better off financially if the will were denied probate than they would be if the will were admitted to probate See generally William M McGovern amp Sheldon F Kmta WELLS Taosrs nae ESTATES 464 2d ed 2001 If the rule were otherwise wills would be subject to suits by persons seeking to extort money from legitimate ben eficiaries who want to avoid litigation Under the laws of all states an intestate s children take to the exclusion of their own descendants Thus if Testator s will were denied probate 39l estatorquot s entire estate would pass to lVlEil r nothing would pass to the grandchildren or gr39eatgrandehi1d Mary therefore would have standing to contest the will because as Testatofs only child she would be her only heir if the will were denied probate On the other hand Grandchild would not be financially better off if the will were denied probate and thus would lack staitding to contest the will EGtI1lTWO ZT Sl lGl probably had the mental eapaeity to exeettte a will at the time she 39iO w397l 0 7 2 executed it In order to 393Clil a will a testator rhttst have mental eagoaeity A testator rneets this teqnirerhent iftlte testtttor lZl 1tZ39t fS l the nature and extent of her p1 ope1 tv39 2 the persons wlto are the natural LJJ February 2004 Question 1 Analysis objects of the testatorb bounty and have the highest moral claims to the testato s property 3 the disposition the testator is attempting to make and 4 the interrelationsltip of these items in connection with the testamentary plan formulated in the will Sec gencznlilr Jesse Dukeminier 8 Stanley M Johanson WELLS Tausrs ANB Estates E63 6th ed 2000 39 All persons are afforded the presumption that they have mental capacity As a result the burden of proving that the testator lacks mental capacity rests on the contestant to the will Here there are two arguments to support a will contest on mental i1 tlta39p3City grounds although Bank has good responses to both arguments First Testator arguably did not know the nature and extent of her property Testator could not identify the stocks that she owned or name the stockbroker who managed thorn Also she could not recall the addresses of her two residences On the other hand she did know what she was worth and she did know that she owned two residences Thus whether she lacked mental capao ity on this ground may ultimately depend on how precise a testator must be regarding the nature and extent of her property Courts often are very lenient and uphold the wills of elderly testators who at least grasp the big picture about their financial affairs Furthermore because of the burden of proof in a very close case the contestant will lose Second Testator could not identify one of the persons with a high moral claim to her property narnely her greaograndchild On the other hand Testator could identify her more closely related relatives and in particular Mary whom she was intending to disinhcrit Her failure to recall whether she had a greaegrandchild probably would not be dispositive of her mental capacity Courts have not required elderly testators to know the number of their remote descendants particularly in a mobile society where people may have infrequent contacts with grandchildren and greatgrandchildren Point Two to 39i estator s will was not duly executed under the strict compliance doctrine but 3040 oulcl be u eld as valid if the court either ado ts th substantial om 39 n e doctrine or ipfers that Testator requested the witnesses to sig At common law if the execution of a will did not strictly adhere to the required formalities the will would be invalid and the tcstator would have died intestate The facts state that under the governing law a properly executed will must be signed by the testator in the presence of two witnesses after the tcstator has declared the instrument to be her will and has requested that the witnesses act in such capacity Here the signing witnessing and declaration requirements have been satisfied but the facts state that Testator did not specifically request the witnesses to act as such Thus courts adhering tothe strict ecrnmonlaw approach known as the strict compliance doctrine would irwalidate the will See generally McGovern amp Kurtz supra at 17072 011 the other hand statutes in some states and a judicial decision in at least one state have tempered the harsh consequences of the cornrnor1law rule by adopting a substantial compliance approach to determining whether a will has been validly executed See gezterally John H Latigbein Substantial Coatplionce with the WW5 Act 88 HARV L REV 489 1975 Under this approach if the execution of a will substantially complies with most of the formalities or at least 14 February 2004 Question 1 Analysis the most important of them the will is valid See eg In re Will 0fReaaey 124 NJ 1 589 A2d 1339 1991 will valid even though witnesses oniy witnessed the selfproving wit affidavit and did not witness the actual wilt Simiiarty 2503 of the Uaifomt Probate Code UPC grants a court a socalled dispensing power under which a court can probate a will when its execution failed to comply with all of the execution formalities so ioag as the evidence is clear and convincing that the decedent in tended the document to be her wilt In this case the failure to request that the witnesses act as such when they signed in the physical presence ofTestator can easily be ignored under this statute if as the facts suggest Testator clearly intended Charity to take under her wilt The statement My family has enoug is evidence of Testatofs intent It might also he argued from the contest and surrounding circumstances that Testator impiicitly asked the witnesses to sign even if she did not do so expressty She saw them sign and she declared the instrument to be her will At least one court has adopted that approach and thus avoided as aliout adoption of the substantial compliance theory See Matter of Graham is Estate 295 NW2d 415 Iowa 1980 15 ltuult H whI J uiy 2004 Question 4 Question 4 Decadent and his duty child Clara died as the resuit of an accident when Ciarais car was struck frerrt the rear by a truck Ciara was driving and Decadent was riding in the back seat directly behind her The emergency rrredieai team that arrived at the accident scene found ire evidence that either of them was alive The emergency ream physician examined their bodies as they were being retrieved from the ambulance She first prencuaced Decadent dead and then pronounced Clara dead Clara was survived by her spouse SortiaLaw who was named as the sale beneficiary ef her estate under her duly prebated will Clara had no descendants Decadent died intestate leaving an estate of approximately 300000 Deeedeat left 13910 surviving spouse Decedentis parents had predeceased hire by marry years Decedenfs closest surviving relatives are l a brother Brother 2 a halfsister HaifSister who is related ta Decadent through a common mother 3 an adopted sister AdoptedSister who was adopted by Decedeafe parents and 4 hie paternal grandfather Graazps Three years before Deeedeat died he gave Brother a check for 90800 to enable Brother tc buy a new home a Among Sen in Law Brother HalfSister AdaptedSister and Gramps who will share in Dace denfa estate and what is the value of the share each will receive Explain 38 July 2004 Qeestitm 4 Ae2lquotsis 39DECEl3E lTS ESTATES Qttest ee st leeetlP239et letes E l d Clesce stz39x e39e Deeedent smelt that lfeee Ee11t s estete passes S1Q1n1et39y Point One 3040 meet Clz1te s will to Seni11Lenquot 239 Is l l39alfSlS39E1 an heir ef Deeedent 3 ls AdaptedSister en heir of Decetlettt Bees the 390300 gift to Brother reduce Btetttefs share of Deeedents estate E39 l 5 is Gremps entitled to any share efDetecIent s estate DlSCli S1QbE Under the Uniform Simulteneetts Death Act Clare is deemed to have predeceased Dececlettt Lilltewise Clare predeceased Deeedeet uncles the l2C l10 L1l Su139VlV0fSl 1lp rule of the Ut1ifoa39m Prebate Cede UPCThe1 efet39e Sen inLe w Cettnet Claim any share of Deeede1 1t s estate Deeedenfs heirs are his siblings Brother llelquot Sistet and AdoptedSister However their respective shares of Deeedettfs estate ntey dill fer depending upon ttnderlyilzg state lent The gift to Breather is net en adveneemettt and thus dees net reduce l3t othetquots share of Decedentis estate If Half Sistert21lltes an equal share them Bmther HalfSister and AdoptedSiste1 are each entitled to 100000 Gremps would take eel in at state detettnining heitship under the civil law method If C0 S 1 1gt1lI39iity whic11 very few states apply Uedtet the Uniform Simultaneous Death Act there is a pI St39tI 1pii0I1 that Clara predeceased Deeecleet ancl there is me evicletnee here 0 rebut that presumtntielt Liltewise under the UPC s l20 tgtmt st1ts39ive1 shi3 rule Glaze predeceased Decedent because she did net sttrvive him by 120 l10ttt s Titus Seni1quot1Lew is not entitled to any share of Deeedentis estate Sett i11L2m as the sole beneficial under C la139s s will uettld be entitled to Decedent39s estate 0111339 if Cl 1i E1 hadbee11entitled tetinl1e1it Dececlent s estate Clara would be an lteir ef 39DeCede1tt only if she St1l quot s l ecl Deeedent because an heir must be alive at the time of the i1testete s death l lOW E1 in 3 sitttetitm such as this one wl1eI39e the two deeedents were killed in the seine t139attie accident Clare is deemed to leave peetleeeesed D Ct3Clt3i i39 if there is ittsttfficiezat evidettce that she and Deeedest cited other than Slmtlllttll otl l Limit Simttl Death Act 31 2 Since the evizrlence here is usu339393939 l393939393939quot390 up v IIJ nw n2 ox en n J Lil 2004 Question 43 ampiE1iquotSiS insufficient to establish that they did not die simultaneously under the Uniform Act Clara is deemed to have predeceased Decedeat While it might be argued that Clara Stlliflt Ed because the truck hit her car from the rear and pre sumably hit Decedeat first it is also possible that the irrere impact at the rear of Clara 3 car was sufficient to cause both their deaths Furtltertrtore the only direct quotid I1CE of tlieir deaths was that neither appeared to be alive at the scene of the accident Thus there is ac direct evidence to estab lish that Clara sttrvitred Decedent The fact that Decadent was declared dead first should riot be c0ni1 olling because the declarations of death were made simply in the order in wlticit they 1s39ete retnoved from the ambulance and the factual evidence supports Elie conclusion that neither was alive wliertt they were placed into the ambulance Under 2404 of the UPC Clara is also not an heir of Decedent because she failed to Sl1I i ii E hire by l20 hours Poirlt Two HalfSister is an heir of Decedent Dcrleodina or state law she is entitled to either 1020 the same share as a whole sibling or a lesser share Decederrts heirs will be the desceridatits of his deceased parents and perliaps Grattnps Sea Point Five The issue therefore arises whether siblings of the hal blood and adopted siblings inherit along with siblings of the whole blood Half Sister and Decadent are hal bloods because they share onlys39 one common parent Under 2107 of the UPC relatives of the half lalood iohetit the same share as relatives of the wliole blood Thus HalfSister would take 100000 However in some jurisdictions they inherit a smaller share See eg Iowa Code 633219 Point Three AdoptedSister is an heir of Decedent 2030 At common law an adopted child could not take from or through an adopting parent Thus at common law AdoptedSister would not be Decedeofs heir By the end of the tweotietl 1 century motivated by a policy to treat the adopted child as part of the adopting parents nuclear family most state laws were changed to tgtl ovide that an adopted child is treated as as biological child for purposes of inheritance Thus under the UPC Decedents estate is distributed equally to the descendants of his deceased parents See UPC Q 21033 The descendants of Decedertts parents include both their biological and adopted cliilclren See UPC 5395 21 l lb Thus AdoptedSister would take 100000 J U July 2004 Question 4 Analysis Point Four i39ecedent s lifetime gift to Brother is not an advancement and thus does not reduce 2030 Brother s share of Decedenth estate At common law a lifetime transfer to a child who wonld he the transferorit heir was treated as a down payment on the child s intestate share Under the cornnionlaw role the gift to Brother would not he an advancentent as Brother is not Decedenfs child See generally Joel C Debris Stewart E Stork amp Melanie B Leslie ESTATES AND TRUSTS 155 2d ed 2003 see also 755 Ill Comb Stat S25 Many states have broadened the conirnonlaw rule to include transfers to any person who is an heir However most states also provide that a lifetime transfer to a person who would be the trans feror s heir is presumptively a gift and not an advancement See UPC 2109 States di er in what it takes to rebut the gift presumption Some states permit any competent evi dence to be nsed to rebut the presumption Others have a heightened evidentiary requirement For example under the UPC the presumption that a lifetime transfer was a gift can he relntttedby a contemporaneous writing of either the decedent or the donee stating either that the gift was an advancement or that it was to be taken into account in computing the distribution of the deco d i1t S estate UPC 2109 Here however there is neither a writing nor any other competent evi dence that Decadent intended an advancement when he made the transfer to Brother Consequently the transfer to Brother would be treated as a gift not an advancement and Brother would take 100000 of Decedenfs estate Lastly in some states an advancement only occurs when the clones would have been an heir of the decedent at the time the transfer was made See eg Iowa Code 633224 If that rule applies here the transfer could not be an advancement because at the time Decadent transferred the money to Brother Clara was living and thus would have been Decedents only heir Eoint Eive Gramgs is not entitled to receive any share of Qecedenfs estate unless heirship in 515 the state was determined under the civil law method of consanguinity Under the civil law method of consanguinity Gratnps as well as Deeedent s siblings would be related to Decadent within the second degree of consanguinity and Grainps would share equally with the siblings in the estate Most states have rejected this method of determining heirship In those states including all those that have adopted the UPC and those that follow the parentelic method of descent Grarnps would not be entitled to share in Decedenfs estate 56 Iquot39 quot393 if y rs quot 5 tm 7 39 p Question 1 Testator was an 80yearold rnentaliy alert widow Testator retained Lawyer to prepare her wilt naming Charity a charitable organization as the sole bene ciary of her estate One week later Testator received a photocopy of a proposed wilt that Lawyer had prepared for her A few days later on October 1 1998 Lawyer caiied Testator to inquire whether the proposed will conformed with her wishes When Testator responded that it did Lawyer suggested that Testator make an appointment to come to his office so that she could execute the original which was in his possession Testator responded that because of her arthritic condition it would not be con venient for her to do so and she told him Just go ahead and sign the will for me Lawyer said OK Later that day Lawyer inserted October 1 1993 as the date of execution on the original will and signed 39i estator s name on the will in front of three secretaries who acted as witnesses The secretaries then signed their names in the spaces provided on the will Ail of then saw Lawyer sign Testato s name and each of them saw the others sign their own names Lawyer then called Testator and told her the will had been signed and witnessed Testator replied Good now it s done Please keep the will for roe l A year later Testator decided that she wanted to change the will to give her dianriond ring to her niece Nora Deciding to make the change herself she asked a friend to type up a document which was identified as a codicii to my existing last will This document was then validly ese cated and stated I ieaye my diamond ring to my niece Nora In all other respects I hereby af rrn my existing last will executed on October 1 1998 A year later Testator had a falling out with Nora Remembering that she had devised her diamond ring to Nora she gave the ring to another niece Betty as a gift Testator died a few months later Her closest surviving relatives were her two nieces Nora and Betty At the time of her death her only asset was a parcel of real estate known as Biackacre Whois entitled to Biackacre and to the diamond ring Explain February 2003 Question I 4mrt o Lm4 a February 2003 Question i Analysis DECEDENT9 ESTATES WILLS Question 1 Analysis Legal Problems 1 Was 39I estator s October l 1998 will property executed 2 Did Testator s codicil effectively incorporate her earlier wilt by ref erence 3 Did Testatofs gift of the diamond ring to Betty adeern the codicilis bequest of the ring to Nora DISCUSSION Summary Although Testator s will was not validly executed because it was signed in her name but outside of her presence it was validly incorporated by reference into Testator s duly executed codicil which expressly referred to it by date Thus the will as incorporated by reference into the codicii is valid to pass title to Blackacre to Charity the bene ciary under the will Because the bequest of the ring in the codicii to Nora adeerned by virtue of Testator39s gift of the ring to Betty Nora is not entitled to the ring Point One Testatofs October 1 l 93 wiii xv s on effe tivel scouted because w er 3545 while sip ning it at I estator r direction did not sign it in her presence Wit execution statutes commonly provide that another person may sign a testator s will if it is done at the testatofs direction and in the testatorquots conscious presence See eg Uniform Probate Code UPC 25022 A few statutes additionally require that persons who sign for the testator must also sign their own names and sometimes also give their addresses See Restatement Second of Property Donative Transfers Statutory Note to 331 Many wills statutes require one or both of the following additional requirements 1 that the testator declare the instrument to be his or her will to the witnesses or 2 that the testator ask the individuals selected as wit nesses to witness his or her execution of the instrument In this case Lawyer signed Testator s narne at her direction but the question is whether he did so in her presence The likely answer is that he did not Courts have used two tests to determine presence the majority lineof sight test and the minority conscious presencequot test Under the conscious presence test the will execution is sufficient if it was done in the testat39or s con scious presence ie within the range of the testator s senses such as hearing See Unif Prob Code 2502 crnt 13 February 2003 Question l Analysis Lawyer clearly did not satisfy the iinerilsigltt test because Testator did not see Lawyer sign ing the will on her behalf Under the lineof sightquot test the testator should be capable of seeing the witnesses and the person who is signing the will on the testatcr s behalf actually sign the will in those cases where the testator must specifically ask the witnesses to act as such the witnesses should be capable of hearing that request Matter of Jcj ers39oii s llih 349 So 261 i032 Miss 1977 Even under the more liberal conscious presence test which the UPC expressly adopts it is very unlikely that the court will conclude that the presence requirement was satisfied In the analogous situation where a testator acknowledges her signature to witnesses over the teiephorie courts have held that this does not satisfy the conscious presence requirement See In re Estate ofMcGarr n 743 P2d 994 Idaho Ct App 1987 There is too much roorn for fraudulent or mis taken substitution of one document for another under these circumstances to permit the will to be admitted to probate 8 The defect with the signature requirement is itself sufficient reason to conclude that the will was defectively executed Additionally since Testator did not sign the will acknowledge her signa ture acknowledge the will to the witnesses in their presence under either test or ask thorn to act as witnesses there was defective execution with respect to the witnessing requirements of the will statutes is roost states The Uniform Probate Codequot39s harmless error provision UPC 2503 would not likely allow the October 1 1998 writing to be admitted as a will There are two defects here signature arid attes tattoo and the Comment to 2503 provides that the greater the departure from the required for malities of execution the less likely that the provision will cure the defects This is especially true with respect to defects in the signature requirement Sec UPC 2603 crct Poigt Two The validlY executed codicil incorporated the October 1 1998 will l3LI if6f 13 tC 2535 and therefore the October 1 1928 will car be given legal effect even though it was defcctively executed Therefore Charity is entitled to Blackacre The codicil is Testatofs only duly executed will A properly executed codicil can incorporate by reference as earlier will that was defectively executed as here Seelllerr V Mortock 14 Eng Rep 757 RC 1858 Jesse Dokerniuier 8 Stanley Johansou WIt1sTRus rs AND Esrares 303 6th ed 2000 Therefore if the jurisdiction recognizes the doctrine of incorporation by reference the court should give effect to the October 1 1998 will as an incorporated extrinsic writing The doctrine of incorporation by reference is recognized in most states Either by statute eg UPC 2510 or by judicial decision several requirements must be met in order for a properly executed will to incorporate an extrinsic writing by reference The usual requirerrtents are 1 the extrinsic writing must in fact have39beeri in existence at the time the incorporating will was eae outed 2 the incorporating will must refer to the extrinsic writing as having been in existence at the time of execution 3 the incorporating will must refer to the extrinsic writing in such a way as to reasonably identify it and 4 the incorporating will most manifest the testatofs intentto incorporate the extrinsic writing See Vt EtgIt l v Clemson 78 l lE2d 203 ill 1948 All four of the requirements were met here The codicil s reference to the existing October 1 1998 will is sufficiently clear as is the intention to incorporate the earlier writing Therefore Charity is entir tied to Blackacre 14 February 2003 Question 3 Anaiysis Note If the jurisdiction does not recognize the incorporation doctrine the probate court should not give any effect to the October 1 1998 writing Speci cally the doctrine of republication by codicil cannot be used to republish an earlier will that was defectiveiy executed The republics tioa requirement can be used to give effect to as earlier will that was invalid for reasons other than defective execution The October 1 1998 will was invaiid soiely because it was defective iy executed so republication is not available here if the xvii was not incorporated by reference Blackacre would pass to Nora and Betty equally as Testatofs heirs Point Three The beguest of the diamond ring to Nora was adeemed by Testator s g ift of the ring 25 35 to Betty Therefore Nora is not entitled to the ring and Bettv keeps it The doctrine of adsorption by extinction provides that if the subject matter of a speci c bequest is not part of the estate at the testatofs death the bequest is adeetrted The doctrine applies oniy to speci c bequests The bequest here was speci c because the vvili referred to a specific asset Under the traditional approach to adeniptionmthe socalled identity theory the testator s intent as to adernption is irrelevant Ail that matters is whether or not the speci cally bequeathed asset is part of the estate at death Accordingly Testatorquot s gift of the ring to Betty caused the bequest to Nora to adeetn Even under the Uniform Probate Code39s I 10I13dt31 1 1piiOfl provision UPC 2606a6 which adopts the socalled intent theory of adernption the result would be the same In the Comment to 2606 the drafters provide a hypothetical problem with facts similar to those of this case The Continent states G s deliberate act of giving away the speci cally devised property is a fact and circumstance indicating that ademption of the devise was intended Therefore 2606a6 would yield the same result as the traditional adentption doctrine particularly because the facts state that Testator gifted the ring to Betty in order to ensure that Nora did not take tinder the codicii 15 1mwnwmuw July 2003 Question quot2 Question 2 In 1988 Testator duly executed a will devising Blaeltaere to Adam 100000 to Carrie and the residue of her estate to Doris However in I992 Tetztator telephoned her lawyer Lawyer who had possession of the 1988 will and asked her to destroy it because Testater had changed her mind Lawyer agreed Irmnediately after hanging up the phone Lawyer found the will shredded it and threw it away in 1996 Testator signed and dated a wholly handwrittert document that stated I devise Blaelcacre to Earl and 2500000 to my good friend Fred Testator died in 2002 a domiciliary of State A She was s39urvived by Greg age 30 who was her child and only heir Adam Carrie Doris Earl and Fred also survived Testator There was no sur viving spouse 39I estatorquots net probate estate after taxes debts and expenses eensisted of 5000000 pine Blackaere t The 1996 document together with an ueexeeeted copy of the 1988 will the original of which Lawyer had shredded were found among Testator s valuable papers Both documents were offered for probate Under State A law holographic wills are valid 1 Which documents if any govern the distribution of Testato s estate Explain 2 What are the respective shares if any in Testator s estate of each of the following Adam Carrie Doris Earl Fred and Greg Explain 39 40 Jaly 2003 Question 2 Analysis DECEDENTS ESTATES AND TRUSTS ILA llC llF 1118 Question 2 Analysis Legal Problems 1 Was the i988 will that was destroyed by Testator s lawyer outside of 39l estator s presence legally revoked by physical de structior1 2 is Testato s 1996 handwritten will entitled to he probated and if so as a subsequent testamentary instrument did it revoke Testator s l988 will 3 Is Greg entitled to any share of the estate as a preterrrtitted heirquot DISCUSSION Summary Bl lCl3Ci t3 is distributable to Earl under the terms of the valid holographic will and the balance of the estate is distributed as follows 100000 to Carrie under the 1988 will 2500000 to Fred under the 1996 will and the residue to Doris under the 1988 will Adam and Greg take nothing This distribution results from the fact that the 1988 will was not wholly revoked by destruction but only partially revoked by the inconsistent provisiorts of the oodieil Fttrtherrzoore Greg is not entitled to a forced share because he was alive when the wills were signed Point Que The 1988 will was not revokedjbecause it was physically destroyed by someone 2530 other than the testatot and not in the testatofs presence Most states require that a revocatory act such as physical destruction of a will by someone other than the testator he done in the testatofs presence or at least in the testator s conscious pres ertce and at the testatofs request See eg Uniform Probate Code UPC 5 2507 Therefore in most states the 1938 will would not have been legally revoked Testator asked Lawyer to destroy the will but the destruction did not occur in Testator s presence Although the i988 will was physically destroyed it was not revoked and the onexecuted copy is available to prove its content Point Two Because holographic wills are valid in State A4 the 1996 will can he probated The 3545 1988 will was revoked lg the I996 holographic will only to the extent that it was inconsistent with the later holographic will The 1996 document is a holographic will because it is entirely in Testator s handwriting under the laws of State A holographic wills are valid and therefore the 1996 will is entitled to be pro bated 1 52 July 2003 Question 2 Analysis The fact that the l996 will is entitled to be probated however does not preclude the possibility that the 1988 will can also be probateci so long as it was not revoked Wills may be revoked either by physical destruction accompanied by an intent to tesolte or by the execution of a subsequent will Typically it a will has been executed and then another will is executed the latter will revokes the former will only to the extent that they are inconsistent unless of course the latter will has an express revocation clause See generally UPC 2507a1 Here the 1996 will did not have an express revocation clause Because it did not have a residaary clause it contained only a specific bequest and a general bequest its terms are not wholly inconsistent with the terms of the 1988 will In fact the only inconsistency between them is the disposition of Blackacre Under the 1988 will Blackacre was bequeathed to Adam under the 1996 will it was bequeathed to Earl Since the later will trumps the earlier will Blachacre is distributable to Earl Assuming that both documents can be probated for the reasons stated the probate estate should be distributed as follows Blackacre to Earl 100000 to Carrie and 2500000 to Fred Doris the residaary Iegatec under the l988 will takes the remaining 2400000 Adam takes nothing Point lfhree Greg Testatgfs child and only heir is not entitled to an share of Testatofs estate 2025 because he is not a pgeterotitted heir In most jurisdictions pretertnitted heir statutes have been enacted permitting children of 3 tests tor under certain circumstances to claim a share of the estate even though they were omitted from the deceased testatofs will Typically these statutes apply only if the child was born or adopted after the execution of the will See generaliy UPC 3 24502 Here Greg was alive when both the 1988 will and the 1996 will were executed Thus Greg would not be entitled to a forced sharequot under the typical pretertnitted heir statute However if the statute protects children born before the will was executed who were not expressly disinherited then Greg would take the entire estate 53 February 2002 Question 4 Question 4 Testator duly executed a will dated March l 1998 Among other things the will stated 1 I direct that all of my just debts and expenses be paid by my executor 2 I give my family home to my daughter Daughter 3 I give my 2 t carat gold watch to my son Son 4 I give the rest of my estate including any property over which I may have a power of appointment to Trustee to hold in trust for the primary benefit of Sea and Daughter with the remainder to their children Testator was the income bene ciary of two separate testamentary trusts one created by Testator s mother Mary the other by 39l estatot s father Frank Testator had a special testamentary power of appointment exercisable in favor of Testatofs issue over the testamentary trust created by Mary Mar s will provided that Testator could exercise the power only by a specific reference to the power of appointment created by liaryquot39s will Testator had a general testamentary power of appointment over the testamentary trust created by Frank t Both Mary and Frank died in 1990 They were survived by Testator Son and Daughter At Testator s death in October 2001 Testator owned a the family home on which Testator was personally liable for a 50000 znortgage b an insurance policy that speci cally insured Testator s 24carat gold watch which had been stolen from Testator five days before Testator died and c a portfolio of stocks and bonds Testator owned no other assets Bank was appointed executor of the estate Trustee was named trustee of the trust created in para graph 4 of Testatofs will Bank collected the value of the stolen watch from the insurance cont party 1 Did Testator effectively exercise the two powers of appointment he had at the time of his death Explain 2 Should the 50000 mortgage on Testatotfs home be paid out of the assets of Testator s residaary estate Explain 3 Should the insurance proceeds for the stolen watch be distributed to Sort as legatee of the watch or to Trustee Explain Fehrttary 2003 Question 4 Analysis DECEDENTS ESTATES lll TRUSTS ILD Question 4 Analysis Legal Problems la Did Testatofs will which included a general residuary ciause purporting to exercise all of the donee s powers of appointment a so called lgtlanket exercise clause effectively exercise the spe cial testamentary power of appointment that was created in Mary s will lh Did Testatofs will which included a blanket exercise clause effec tivel exercise the general testamentary power of appointment created in Franllt s will 2 Does Daughter the devisee of speci cally devised encumbered property take that property subject to the rrrtortgagge where the will contains a clause directing that the decedertfs debts be paid by the executor 3 Is Son the speci c iegatee of the watch entitled to the insurance proceeds on the watch that were payable as a result of the theft of the watch shortly before Testator s death DISCUSSE EN Point Ortega The blanket egercise clause in 39l estator s wiil did not effectively exercise the 3525 power of appointment given to Testator by Mar fs will because Marys will required Testatgr to refer specifically to the power when exercising it In most states a general residoary clause in a will eg I give all of ray estate does r1otexer cise powers of appointment The situation is different if the genera residuary clause is coupled with what is called a b1aoet exercise clause eg including all property over which I have a power of appointmentquot as is the case here Under these circumstances any power of appoint ment held by the clones is exercised unless the donor of the power of appointment specifically required the doriee to refer to the iastrurrieat creating the power when exercising the power See generally Unif Probate Code 2608 See also Restatement Second of Property 13912 G984 accord Holrbocit 1 United Vtrgz39nio Bank 2l6 Va 487 219 SE2d 868 1975 Here Mary the donor of Testatofs special power expressly required that Testator speci cally refer to her will in which the power was created if Testator as doaee of the power sought to exer cise the power Testatofs will contained only a blanket exercise clause which failed to satisfy a 28 February 2002 Question 4 Analysis condition on the exercise of the power imposed by the donor Thus the power was not effective ly exercised Point Onelblz Testatofsgeneral testarneetary power created by Fraril s will was effectively 1015 exercised by a blanket exercise clause No facts indicate that Frank imposed a speci c reference requirement with respect to the general testamentary power that Frank as donor granted Testator as donee Therefore under the rule that a blanket exercise clause is effective to exercise powers absent a specific reference require ment see Point CJnea Testator s will effectively exercised the general testamentary power of appointment Poirit Two At conirnon law Daughter takes the family home free of the mortgage Under the 2030 law of most states today Daughter takes the home sebect to the rriortgage on which Testator was liable at the time of his death The rnortv age is pot payable from the assets of Testator s estate Under the comtnonslaw doctrine of etoneratiort the speci c devisee of encumbered real proper ty was entitled to have the mortgage on the property paid from the estate as a debt of the dece dent unless there was evidence of a contrary intent on the part of the testator See eg Martin v Johnsorz 312 A2d 1017 DC 1936 Or the other hand many states have adopted statutes contrary to this ootnrrtonlaw rule of exon eratiori For example the Uniform Probate Code provides that a speci c devise passes subject to any rnortgage interest existing at the date of death without right of eaoneration regardless of a general directive in the will to pay debts Urtif Probate Code 22607 In states with statutes of this type the speci c devisee of encumbered property takes subject to the mortgage notwith standing the fact that the will contained a clause directing the executor to pay the decedent s debts Courts have also held that a general directive to pay debts is insufficient to evidence an intent to exonerate the devises of specifically devised property See eg Grr irt it Gould 72 Ill App 3d 747 391 NEd 124 1979 Depending on the underlying state law Daughter takes either sub ject to the mortgage or free of the rnortgage T Eoint Three Thetinsurance proceeds payableas a result ofthe theft of the watch shortly before 25 35 Testator s death should pass to Sen as the specific devisee of the watch There is however contrary authority Under the doctrine of adeinption if the subject matter of a speci c devise is not in the probate es tate at the time of the testator s death the bequest to the devisee adeerns or fails See generally William H McGovern Jr amp Sheldon F Kurtz WILLS TRUSTS AND Esrares 295 2d ed 2001 However if the property was destroyed by fire or lost by theft and proceeds of insurance are paid 29 W m Lnquot n 39 39 r Ff3b1 1I 1I39 2002 Que1i0n 4 Analjis to the executor of he estair in seitleinenl of claims against ihe insurance cempany some courts held that the insurance proceeds are payable 1 the specific devisee as a substitute for the specif ically d zvisaci preperly See Wiaire v Wlafte I05 NJ Sup r 184 251 A26 470 3969 accord In re Eszaie of Wolf 208 NW2d 923 Iowa 1973 Unif Probate Code 2606 However some state courts have held U3 tha contrary nding that the insurance proceeds pass 11 part of the testator s residuary estate In re Estate of Wright 7 NY2d 365 197 NYS2d 711 165 NB2d 561 1960 They find that the insurance policy is a separate anal distinct asset from the property subject in the spaci c devise and that the proceeds as speci cally undispvsed property pass to the residuary legatees undezr the will It seems that the majarity rule stated in Wolfe 208 NW2d 923 as well as in the Uniform Probate Code and same ether state codes is the better rule because it is more likely to accord with the quotreasonable expectations of 3 testator July 2002 Question 2 Question 2 On February I0 2000 Testator signed her last will which was witnessed by two witnessesm Testator s nephew Nephew and Testatofs nextdoor neighbor Testator died or May 10 2000 after a brief hospitalization During the six months before she died Testator experienced frequent episodes of forgetfolriess For example Testator often missed appointments with her physicians and her back trust officer Testator had also become increasingly forgetful about matters of personal hygiene On the other hand throughout that SiX39Il39l3l liLil period Testator maintained all of her nancial records and vis ited in person and by telephone with each of her 20 living relatives all of whom she easily rec ogaized and identi ed On April 3 she contacted her broker to advise him to sell her shares in Able Corporation because she had lost complete faith in the corporatiotfs management following the release of its poor qtI i139I 2I lquott33l39IiIlg S report Testatofs will bequeathed 100000 to Nephew and the residae of her estate to Charity a ehari table organization with which Testator had been associated for more than 35 years Nephew had no knowledge of the 100000 bequest until after Testator died She left no bequest to her three nieces who are Nephew s three sisters None of Testator s other living relatives was as closely related to her as Nephew and her three nieces Cootemporaaeous with the execution of her last will Testator signed a durable health care power of attorney designating Nephew as her agent to make all health care decisions for her in the event she could no longer make them for herself Nephew and Testatoifs nextdoor neighbor also wit nessed this doctaneat One week before she died Testator was admitted into a local hospital following a massive stroke causing severe brain damage The following day she lapsed into a coma and was connected to a lifesupport system Four days later Testator s physician advised Nephew that there was nothing medical science could do for Testator After considering this advice Nephew directed the physi cian to remove Testator from all life stipport systems The following day Testator was removed from the lifewsuppott system and she died She left an estate in excess of 1 million Testatofs three nieces argue that Testator s durable health care power was not valid and that as a result Nephew should be liable in wrongful death for causing Testator s death because Nephew directed Testatorls physician to withdraw Testatofs lifesupport systems Furthermore they claim that either Testator s will is invalid or that at minimum the bequest to Nephew should be for feited l Is Nephew liable in wrongful death for causing Testator s death Explain 2 Is Testatofs will invalid because of incapacity Explain 3 Assuming Testator s will is valid is the bequest to Nephew valid Explain 14 July 2002 Question 2 Analysis DECEDENTS ESTATES ILA ILJ l 7C IVD Question 2 Analysis Legal Probiems 1 Is Nephew liable in wrongful death for causing Testator s death a Was Testator s durable health care power of attorney validly executed b Was Nepheeg a bene ciary under Testatrofs will and a witness to Testatofs health care power of attorney prohibited from acting as an agent 2 Cart the nieces successfully challenge the will because Testator lacked the meatai capacity to execute her will 3 Does Nephew forfeit the bequest under the interested witness statute DISCUSSXON Sammagy Nephew would not be liable in wrongful death if as it appears he acted under a valid durable health care power of attorney and in good faith His decision to direct the withdrawal of life support was entirely consistent with the doctor s medical advice Testator s wiii appears to have been vaiidiy executed Arguments that Testator lacked mental capacity should fail because the facts show that she knew both the objects of her bounty and the nature and extent of her property Lastly Nephew would not forfeit his share under typical state interested witness statutes because the wilt bequeathed him a share less than what would have been his intestate share Likewise tinder the UPC he would take his share as that statute has so interested witness forfeiture statute Point One Under the typical durable heaith care power of attorney statute if Nephew acted 3540 fe under a valid durable health care power and in good faith he would be shielded from civil liability that might otherwise arise as a result of his directing the with drawal ofthe1ife stio3ort systezris The typical durable health care power of attorney statute imrauaizes the agent of the erincipal from civii liability for health care decisions made in good faith See eg Unif Heaith Care 43 Italy 2002 Question 393 Analysis Decisions Act 53 9bl993 Health care decisions include the decision to withhold or withdraw lifesustaining treatment including food and hydration See Unitquot Health Care Decisions Act l6 Agents act within the scope of the statute when they act pursuant to a properly executed durable health care power of attorney State laws vary however on whether the person designated as the agent can be a witness to the durable health care power of attorney For example under the Uniform Health Care Decisions Act the designated agent is not prohibited from being a witness In fact under the Uniform Act no witnessing of the power is required 0a the other hand in many states the person designated as the agent cannot be a witness to the power 39 Even if Nephew was not legally constituted as Testatofs agent he may nonetheless have acted appropriately under so called family consent laws These laws permit close family members typically in the order listed in the statute to act as a surrogate decision maker for a patient where there is no properly authorized agent acting under a durable power For example under 5 of the Urtifonn Health Care Decisions Act Nephew could act as a surrogate decision maker since there are no more closely related relatives and Nephew is an adult who exhibited special care and concern for the patient Whether Nephew was acting as a properly constituted agent or as a surrogate under the family consent law ultimately the issue of civil liability most likely depends on whether Nephew acted in good faith Here the facts suggest that he did Testator had suffered a massive stroke and had lapsed into a coma and Nephew s direction to withdraw Testator s life support appears to be consistent with sound medical advice to the effect that more care would be futile While the fact that Nephew is named in Testator s will as a bene ciary may create the appearance of irnpro pricty this fact alone is not sufficient evidence of bad faith empirically most agents and surro gates are persons who are both close to the principal and named as beneficiaries under the prin cipai s will Point Two Testator s will is valid notwithstanding that Testatot was sometimes forge l as 3540 the facts support the conclusion that Testator had the mental capacity to execute arrill In order to validly execute a will Testator must have mental capacity A testator has mental capacity if the testator knows I the nature and extent of the testator s property 2 those persons who are the natural objects of the testatorquots bounty 3 the nature of the instrument that the tes tator is signing and 4 the disposition that is being made in the will See generally William H McGoyerii amp Sheldon F Kurtz WILLS TRUSTS AND ESTATES 272 2d ed 2001 Here Testator was forgetful which at first blush suggests the absence of mental capacity But sim ply relying on that fact is insufficient to determine whether Testator had mental capacity since the criteria that determine mental capacity for purposes of validating a will look specifically to Testatofs understanding of her property interests her bene ciaries and her disposition On these issues the facts suggest that Testator did have mental capacity July 2002 Question 2 Analysis Testator appears to have been actively involved in the management and administration of her property affairs suggesting that she knew the nature and extent of her property She knew those persons who might be the objects of her bounty as evidenced by the fact that she frequently visited with her 20 relatives including those not mentioned in her will Furthermore the bulk of her estate is bequeathed to Charity an organization with which she had had a long association Thus the will does not reflect a disposition that wonld likely be inconsistent with Testator s tes tatnentary intent Given that the burden of proof to establish the lack of testamentary capacity rests on the contestants it is most unlikely that they could sustain that harden on these facts Point Three Nephew would not forfeit any of his bequest under the will 2030 Under the Uniform Probate Code Nephew would not forfeit his bequest even though Nephew was a witness to the will because the Code does not have an interested witness statute barring interested witnesses from taking under a will At common law if a will was not witnessed by two disinterested witnesses the will was invalid See McGovern amp Karts supra at 177 in the United States this harsh rule has been replaced by statutes in most states barring the interested witness from taking the bequest but not invali dating the will Id The typical interested witness statute however contains one or two important exceptions The first is that if the will is witnessed by three or more persons such that the will would have been valid without the witnessing by the interested witness the interested witness does not forfeit the bequest Id That exception would not apply here as Testator s will was witnessed only by two persons The second exception is that if the interested witness also would have been an heir of the testa tor the witness forfeits only so tnuch of the bequest as exceeds what would have been that wit nessquots intestate share Under that exception Nephew forfeits nothing as the bequest to Nephew of 100000 is less than what his intestate share would have been Nephew s intestate share would have been in excess of 250000 as the estate is valued at more thanl naillion and there are four heirs In light of the discussion under Point One there is no reasonable basis on which to argue that Nephew s bequest is invalid under the slayer statutes Likewise the facts state that Nephew was wholly unaware of the will provision in his fayor Thus there is no basis to invalidate the will on undue in uence grounds NOTE if the will is valid the nieces would probably have no standing to raise the interested wit ness issue If the interested witness statute applied and the bequest or some portion of it were forfeited the forfeited portion would pass to Charity as the residoary legatee under Testatofs will un I393939 quotquot Iquotquot oouw Febmary 2001 Question 1 February 2001 Question 1 Testato s iasi will included the foiiowing four dispositive provisions l 2 4 I leave my family portrait painted by Painter to my sister Susan I leave 100000 each to my child Leslie my child Doris and my wife Wendy I leave 40000 to my brother Ben and direct that my stamp collection be sold to setisfy this bequest I leave the balance of my estate to the trustees of my alma mater University Tesiiatofs will was signed by Testator and witnessed by Testatofs brother Ben and by Testator s aceouetaet Aaron Two years after the will was executed Tesiator and Wendy divorced As a result of their prCper ty settlement agreement incident to that divorce Testetor transferred 200000 to Wendy That agreement imposed no further obiigations on Testator Testator never remarried Three years after the divorce Testator died a domiciliary of State A He was survived by Leslie and Doris his only heirs and the other iI1CiiViIii13l devisees named in his will Testatofs estate consisted of the fazniiy portrait valued at 2000 the stamp collection vai ued at 20000 and 110000 on deposit at a local bank State A law provides that a will must be signed by the testator and witnessed by two witnesses How should Testator s estate of 132000 be distributed Explain February 200 Question I Antdysis February 2001 DECEIDENTS ESTATES 111 ILA ILF Question 1 Analysis Legal Problems 1 Was either the will or the bequest to Ben invalidated because Ben was one of the two witnesses to Testator s will 2 Was the bequest to Wendy revoked as a result of her divorce from Testator 3 Since the assets of Testator s estate of 132000 are insufficient to satisfy all of the bequests under the will how should the bequests abate DISCUSSION Point One The validity of the will is unaffected by the fact that Ben was a witness to the will 3040 However in most states Ben forfeits the 40000 beguest because two di39sinterest ed witnesses did not witness the will On the other hand in states that have adope ed the Uniform Probate Code Ben does not forfeit that bequest At common law if a witness who received a benefit node a will witnessed the will the will was invalid unless two disinterested witnesses also witnessed the will The will was invalid because the interested witness was not competent to testify about the validity of the wiii in court thus its validity Could not be judicially established See generally RESTATEMENT Titian os FROPERTY Donative Transfers 31 Comment o Tent Draft No 2 1998 In virtuaiiy every state the cotntnonlaw rule has been abolished and the witnessing of a will by an interested witness does not affect the validity of the will See eg Unif Prob Code 2605 On the other hand most states have statutes that provide that unless two disinterested witnesses witness the will the interested witness forfeits the bequest to that witness Seine states temper that result if the inter ested witness wottid have been an heir of the testatot by limiting the amount forfeited to the antount if any by tE39hiCh the bequest to the interested witness exceeds the beneficiary witness s intestate share See geztezoZjyWi1iiani McGovern Sheidori Kurtz and Jan Rein WILLS Tsosrs Ann ESTATES 1988 If such statutes applied here Ben would forfeit the entire 40000 bequest as he is not an heir of Testatot Under the Uniform Probate Code on the other hand an interested witness does not forfeit any portion of the bequest to the witness The Uniform Probate Code justifies that approach by not ing that the interested witness statute rarely prevents undue in uence an argument usually made to justify such statutes and typicaiiy adversely affects bequests to innocent persons who act as 21 February 2001 Question 1 Analysis vvitoesses to wills at a testator s express request Under the Uniform Probate Code Ben would not forfeit any portion of the 40000 bequest Poiat Two The bequest of l00000 to Weed is revoked as a result of her divorce from 3040 Testator after the execution of the will 0 0 At comrnort law divorce did not revoke a bequest to a former spouse by operation of law In most states today a divorce revokes a provision in a will for the testator s former spouse unless the will a contract between the former spouses or a court order expressly provides otherwise See gener ally Unif Prob Code 2804 In other states divorce revokes a will provision for the spouse but only if the divorce is accompanied by a property settlement agreement See Dukeminier dz lohansoti WILLS TRUSTS AND ESTATES 283 5th ed 1995 Here Testato s divorce from Wendy was accompanied by a property settlement agreement Thus the provision for Wendy was revoked and she is not entitled to any share of Testator s estate Where a provision in favor of the fonner spouse is revoked by operation of law as in this case the bequest passes as if the former spouse predeceased the testator While Testatoi s will did not expressly require Wendy to survive to take by virtue of the statutory fiction that Wendy prede ceased Testatortl1e bequest lapses It lapses because lapse statutes do not apply to bequests to for mer spouses Typically lapsed general legacies are distributed as part of the residuary estate See eg Unif Prob Code 2 80dd Point Three Legacies abate in the following order residaa11 general and speci c Testator s 4060 132000 estate is insufficient to satisfy all of the geaeral and specific legacies under the will Thus the residum estate fully abates the speci c beguest of the portrait can be fully funded and the remaining beguests abate to a limited extent Beth at common law and under the typical state abatement statute legacies abate in the follow ing order 1 residuaty bequests 2 general bequests and 3 speci c bequests For purposes of abatement a demonstrative bequest is treated as speci c to the extent of the designated fund from which it is payable and treated as general to the excess if any See Unitquot Prob Code 3902a Under Testatofs will Testator specifically bequeathed the family poitrait to Susan Tcstator cre ated two effective general legacies of 100000 each in Leslie and Doris The bequest to Wendy was revoked by operation of law Sea Point Two The legacy to Ben is forfeited under the inter ested witness statute in most jurisdictions Sea Point One In those states where it is not forfeit ed the bequest of 40000 to Ben is treated as a demonstrative legacy that is specific to the eiitent of the valueof the stamp collection 20000 and general as to the remaining 20000 of value See Unit Prob Code 3 902a If the bequest to Ben is forfeited because of an interested witness statute there are 130000 of assets not counting the specifically devised portrait available for distribution to Leslie and Doris who would each take 65000 Susan would take the portrait valued at 2000 The resid uary bequest to University is totally abated February 2200 Question 1 Analysis If the bequest of 40000 to Ben is not forfeited then 20000 of that bequest the portion that cannot be satis ed by the specific bequest of the stamp collection as well as the I0000 bequests to Lesiie and Doris are treated as genera legacies fer a Iota Of 220000 Thus the 1 0000 of the estate remaining after 22000 of assets is distributed to Ben and Susan the two specific iegatees would have to be alleeated ameng the three general Iegatees to whom 220000 had been bequeathed Of that 10000 1I11th would be payable to Ben 50000 511 th weeid be payable to Leslie and 50000 51 Ith would be payable to Doris The 1 esid nary estate is totaiiy abated July 200 Question 4 Question 4 On May 18 i997 Testator duly executed a typewritten will in he presence of three witnesses The will contained only the following three paragraphs 1 I give my watch to my brother Bee 2 I give my dining room table to my sister Sarah 03 I give the balance of my tangible personal property to the person named in a letter Isigned and dated May 17 1997 which I have placed in the desk in 111 home Testator died on January 2 2000 a domiciliary of State A The foregoing will was found in the sleek in Testato s home However in paragraph 2 of the will the phrase dining room table had been scratched out and immediately above it the word automobile was typed And on the back of the will the following language appeared in Testatofs handwriting I dozft want Ben to have my vvaieh I want it to go to my first cousin Chris No signatures appeared on the back of the will beneath this writing The letter referred to in parageaph 3 of the will was found in the desk and named Nicole the daughter of Sarah as the bene ciary Testaiofs only surviving blood relatives are Bea Sarah Chris and Nicole In addition to the watch dining room table and automobile Testator left a 10000 bank account State A permits wills to be completely or partially revoked by the execution of a subsequent will or codieil by physical act or by caneel1ation when aeeompanied by an intent to revoke State A law also provides that unsigned holographic wills or eodioils are valid To whom should Testator s estate be distributed Explain 16 July 2001 Question 4 Aoatysis DECEDENTS ESTATES ILD llF Questiori 4 Analysis Leaal Problems 1 Was the bequest of the watch to Ben properly revoltecl sooth that the watch passes to Chris 2 Is Sarah entitleci to receive the dining room table the automobile or neither 3 is Nicole entitled to the balance of Testatofs tangible personal property under the doctrine of incorporation by referernce 4 To whom should the imdisposed of property the 10000 bank account be distributed DISCUSSION Point One The gift of the watch to Ben was not revoked by either physical act or cariceiia 2530 tion It was revoked however lhy a subsequent will since State A Iaw permits tes tators to execute holographic wills Thus the watch passes to Chris State A law permits wills to he completely or partially revoked by the execution of a subsequent will or by physical act or cancellation In this case no physical act was done to the face of the will to evidence that either the entire will or any of its provisions were revoked On the other hand or the back of the will Testator in her own handwriting stated I don t want Ben to have my watch I want it to go to my first cousin Chris Because these words do not come into phys ical contact with the words of the will they are not words of revocation Tltompsozt v Royall 175 SE 748 Va 1934 But see Unitquot Prob Code 2507 permitting revocation by cancellation even though words of cancellation do not touch words of the wili However under the laws of State A these words can be construed as a holographic codicil In some states the handwriting on the back of the will would not be a vatitl holographic will because of underlying state statutes requiring holographic wills to be signed See eg Uaif Prob Code 2 52h requiring hoiographic wills to he signed StateA however has no signature requirement t t i 39 39 i H i i A holographic will can revoke an earlier typewritten will See generally Maagttm v Ftiliel 797 SW2d 452 Ark 1990 If the sttbsequeittly executed ho1ogi aphic wilt only disposes of a part of L the estate disposed of in the typewritten wiil their the typewritten will is revoked oniy to the extent that it is inconsistent with the provisions of the holographic will See Gi239Z7e1 1 Gilbert 65 SW2d 663 Ky Ct App 1983 See also Uttif Prob Code 507al partial revocation by inconsistency Here the hologiaphic will is iricortsisterit with the typewritten will only to the 49 our lttly 300 Question 4 At39tal sis estetit that it leaves the watch to Chris rather than Ben Thus no other disposition in the 1pe written will is revoked Point Two The bequest of the dining room table to Sarah was revolted by physical act 3550 Testatot revolted the original beqttest with the apparent intent of substituting for it a begnest of the automobile However the substituted bequest cannot be sustained as a holographic will because it was typewritten Furthermore the doctrine of dependents relative revocation is not likely to apply to prevent the bequest of the table from being revoked Under State A iaw a bequest may be revoked by cancellation if the cancellation is accompanied by an intent to revoke When a will is found with marks of cancellation upon it here the scratch es through the phrase dining room table a presumption arises that stich marks were made by the testator with the intent to revoke Sac ge terc1IZv W McGovern S Karts and J Rein WILLS Tntists AND ES391quotATES 52 1988 Here no facts suggest that such tnarlcs of cancellation could have been done by anyone but Testator and in light of the presumption such marks were done by the Testator with the intent to revoke However typing the word autoinobile above dining roorn table suggests that Testator revoked the bequest of the dining room table in order to sub stitute for it a bequest of the antornobiie Unfortunately that typed bequest was neither signed nor witnessed and cannot be sustained as a valid holographic codicii because it was not in Testatofs handwriting Thus Sarah takes nothing unless the revocation of the bequest of the dire ing room table can be avoided under the doctrine of dependent relative revocation Under the doctrine of dependent relative revocation a revocation can be deemed conditional on the validity of a subsequently executed will or eodicil if that would accomplish the testator s intent W McGovern S Karts and J Rein WILts TRUSTS AND ESTATES 53 1988 Under this doctrine if the subsequently executed will is invalid then the revocation which was dependent upon it is ignored Id Typically however courts apply that doctrine only when there is a st1fli ciently close identity between the bequest that was revoked and the bequest that was expressed in the invalid subsequent will Here there is no such close identity between a dining room table and an automobile and accordingly a court is unlikely to apply the doctrine of dependent relative revocation to prevent the bequest of the dining room table from being revoked If on the other hand Sarah could find evidence that Testator s revocation was conditional then she would be entitled to the dining room table See Point Three for disposition of the automobile and the din ing room table i oint Three Underithe doctrine of incorporation by reference Nicole should be entitled to the 1520 balance of Testatofs tangible personal progertv Under the doctrine of incorporation by reference a will may refer to an onattested written docu ment and incorporate its terms into the will so long as that written document was in existence at the time the will was signed and the evidence is clear that tcstator intended to incorporate its terms into her will See eg Smitlt it Weitsei 338 SW 2d 628 Tenn Ct App 1960 W McGovern S Kt1I Z and I Rein WILLS TRUSTS AND ESTATES 63 1938 See also Unif Prob Code 2510 Where soon a document is incorporated the dispositive provisions in it are given the same effect 50 3111 2001 Question 4 Analysis as if l39llt3quot had been set forth in the duly attested will Here the letter ret ert39ed to in Testtttofs will was dated May 17 W97 the day before Teststo1sig1ted he w llTht1s it wss in existence on the date Testator signed the will Teststofs will speci cally I Ef lquot8 to the letter by date and reflects s elem intent that the disposition in the letter be given effect Thus Nicole should be entitled to all of Testatofs remaining tangibles and prottsalsly the specific tsngibles ineffeetistely bequeathed to Sarah See Point Two This p1 6St1II6S39thailt6ITl three of the will operates like it 139esiduat clause but with respect to the tasgibles only Some states have statutes that speci cally authorize the bequest of tengihles in the manner used here and validate such bequests even if the memo was executed after the will See eg Unit Prob Code 2613 Ioint Four The bank eoeount should be distributed to Sarah and Ben as the sole heirs of l5 20 Testetor Where 3 testetofs will fails to dispose of all of the testetotquots property the tmdisposetl of proper ty passes to the teststor s heirs See eg Lev 1 Hebrew Teclmtcal1z2s mte 196 So 2d 225 Fla Ct App 1967 Typically the intestacy laws of the states provide that absent deseendentts or e Spouse an intestete s property is distributed to 1 parents 2 the descendants of the parents 3 more remote ancestors and 4 their descendants in that order Here Testetor s closest living rel atives are Sarah and Ben and as such they are equally entitled to all of Testetot s property not dis posed of by 39l estator s will 51 February 2000 Question 4 Question 4 Banks was a 70yeapold bachelor His closest living relatives were his two nieces Banks had long been a patron of the arts and of the Opera Society On January l5 1997 Banks executed a will bequeathing 100000 to each of his nieces and leaving his iesiduary estate to the Banks Foundation for Opera a private foundation that he planned to establish when he retired He hoped that in gratitude for his generosity the Opera Society would name the new opera house after him A year later Banks learned that he had a tenninal disease He told his nieces he would leave them his entire estate if they would take care of him They agreed to do so and in February of 1998 Banks moved in with his two nieces and asked his attorney to draft a new will bequeathing them all his property and expressly revoking his January l5 l997 will Shortly before Banks was to ex ecnte the new will the president of the Opera Society told Banks that the Board had agreed to name the building in his honor if they received a substantial bequest from hirn Banks then decided to execute the new will using his two nieces as the only witnesses believing this would render the will invalid A day later Banks signed the new will and at his request the nieces witnessed it It was dated February 10 1998 Banks placed this will inside an envelope wrote in ink on the outside of the envelope Not to be opened until my death and initialed the writing Banks died without having created the Banks Foundation for Opera The February 10 1998 will was found in the envelope with the following unsigned note in Banlltsquot39s handwriting on the back of the last page of the will Ignore this will Inever intended to give my whole estate to my nieces I signed it only to trick them into caring for me Long live the Banks Opera House 1 For what reasons ifany could the February 10 1998 will be denied probate as Banks s last will Explain 2 If the will of January 15 1997 is prolgtated on what theory or theories other than fraud may the nieces assert a claim against the estate of their uncle for their care of him Explain 3 lfthewil1 of January 15 i997 is prohated on what theory if any might the Opera Society assert a claim to the residnary estate Explain February 2000 Question 4 Analysis DECEDENTS ESTATES ILA NB llC ill liE llG Question 4 Analysis Lega1Pro olen1s 1 Can the i998 will witnessed only by interested witnesses be challenged on the grounds that it was not executed with testamentary intent it was witnessed by interested persons or it was revoked 39 2 Assuming that oniy the I997 will is entitled to beprobated can the testator s nieces claim any share of the testatot s estate on the theory that they have a claim against his estate 3 Assuming that only the 1997 will is entitled to be probated can the testatoris residuary estate be distributed to the Opera Society in Iien of the Banks F ottndation for Opera under the cry prer doctrine or does the bequest to the foundation fail so that the residue of the testatoris estate is distributed only to his heirs DISCUSSION Point One Testatot s 1998 purported will can be denied orobate because it was not executed 4060 with the requisite testamentary intent if evidence of a lack of intent is inadmissible such that on its face the wilt is valid the 1998 document rniaht atauablv have been revoked by cancellation or by codicil and therefore is not entitled to be probated If not so revoked it is entitled to begorobated The facts indicate that Banks intended to have the 1998 document executed in such a way that it wouid be invalid He did this because he wanted his property to pass to the Banks Foundation for Opera under the terms of his 1997 wiii without his nieces knowing this so they would continue to take care of him What Banks faiied to appreciate was that the mere fact that a will is witnessed by bene ciaries under the will does not mean the wilt is invaiid In fact in almost all jurisdictions the validity of the will is unaffected by whether a witness is interested aithongh interestedness on the part of a witness may have an adverse impact on the witness s right to receive the bequest Seey geeeraiiJ Wiiiiam M McGovern 11 Sheldon FKurtzamp Jan Eilen Rein Wills Trusts and Estates 43 1988 Jurisdictions which have adopted the Uniform Probate Code UPC are even less restrictive since in those jurisdictions an interested witness does not forfeit the testamentary gift Unif Prob Code 2505 Although Banks s will was properlyexecnted it is invalid as a will if it was not executed with any testamentary intent In the absence of testamentary intent a document even though ex coated with the statutory fotmaiities is invalid See ge2ieroZZ 79 Am 3111 2d Wills 12 Testamentary intent can be established by extrinsic evidence Unit Prob Code 2502c and while cases 30 February 2000 Question 4 Analysis such as thismwhere it is the absence of intent that is at issueware rare presumably lack of intent can also be shown by extrinsic evidence The evidence in this case that Banks executed the 1998 will without testamentary intent and to accomplish his goals used his nieces as witnesses nristakenlybelieving this would invalidate his will is also reaffirmed by Banks s handwritten note on the back of the last page of the will This note would likely constitute sufficient evidence to prove that the will was not executed with testamentary intent On the other hand if the note were not admissible for that purpose e g in jurisdictions with a very restrictive view regarding the admissibility of extrinsic evidence the handwritten note might be a sufficient revocation of the will by cancellation at least in some jurisdictions Under 2507 of the Uniform Probate Code a will can be revoked by a number of acts including a cancellation Under the UPC words of cancellation need not touch any of the words of the will but they must be somewhere on the will Under UPC 2507 the note revokes the will because it was written on the will A different result follows in jurisdictions that follow the commonlaw rule requiring words of cancellation to touch the words of the will Sec cg Thompson v Royall 163 Va 492 175 SE 748 1934 words of cancellation ineffective because they did not come in contact with the will Could the 1998 will be viewed as having been revoked by a codicil That would depend upon whether local law recognized holographic wills whether holographic wills had to be signed and whether Banl s s initials on the envelope would meet any signing requirement information that is not provided here Point Two Banllts s niecesprobablv cannot establish a claim against his estate on the basis l020 of breach of contract to make a will but they may be entitled to recover the reasonable value of their services to him Ordinarily contracts to make a will must be in writing See eg NY EPTL l321 Unif Prob Code 2514 In the absence of a writing such contracts are unenforceable Jurisdictions that do not expressly address this matter in their probate codes may reach the same result by applying a statute of frauds On the facts given Bans s agreement with his nieces was made orally No facts suggest that it was reduced to writing Accordingly any claim by the nieces for breach of a contract to make a will would face the hurdle that they never put their agreement with their uncle in writing as required by roost probate codes On the other hand it could be argued that there is enough written evidence of the agreement to satisfy any writing requirement even though there is no formal written contract The 1998 will itself combined with the note on theback of that will provide some written evidence of Banksis promise to his nieces In addition if a local statute of frauds rather than the probate code creates the requirement of a writing arguably the doctrine of part performance or estoppel may avoid the operation of that statute See William M McGovern Jr Sheldon F Kurtz amp J an Ellen Rein Wills Twists and Estates 4669 1938 On that basis the nieces may be able to assert against Banls s estate a claim of breach of contract to make a will 31 February 2000 Question 4 Anaiysis if a jurisdiction does not require a writing to estabiish a contract to make a will the nieces should be able to recover the amount of their damages assuming the I997 wilt is probated If the nieces claim cannot be sustained as a contract to make a will they may be able to recover damages in an amount equal to the reasonable vaiue of their services or impose a constructive trust for such amount on the successor of Banks s estate Id Point Three Assuming that the 1997 wilt is grobated and the nieces are not entitled to the 3040 whole estate the residue of Baaks s estate should be distributed to the Qgera Society in lieu of the Beaks Foundation bv aoplication of the ct pres doctrine The residuary bequest in favor of the Banks Foundation for Opera cannot be given effect even if this will is probated because the Foundation was never organized prior to Bauksquot s death Where a charitable bequest becomes impossible or impracticable to ful ll a court may use the doctrine of eypres to reform that gift to accomplish the testator s general charitable inteot See garzerolfy Restatement Second ofTnzsts 399 1959 Cypress is appropriate unless a court determined that Banks s intent was limited only to bene ting the foundation that was never formed This seems unlikely under the facts of the case since the purpose of the foundation was itself to benefit the Opera Society which can just as easily be accomplished by substituting it as the residuary iegatee under the will 32 July 2000 Question 2 Question 2 Testator a domiciliary of State A died on February 1 1998 leaving a net estate vaiued at 100000 Testator was survived by three children Andy Billy and Cory and one grandchild Gary who is Cory s only child The following documents were found in Testator s safe deposit box 1 At the top there was an envelope containing Testatorquots canceled check dated February 1 1990 made payable to Charity Y in the amount of 5000 Attached to this check were copies of other canceled checks to Charity Y paid over the previous 15 years and a eopy of a note from Testator to Charity Y dated February 1 1990 stating Enclosed is my check in the amount of 15000 I know you will use this as you have all of my prior gifts to quotcarry out the important work of your organization I hope I ll be in a position to do more for you in the future Your work is very important to me 2 Underneath the first envelope was a second envelope containing a onepage typewritten will dated September 10 1989 leaving all of Testatofs estate to Andy and Billy Testator had duly executed this will However the phrase VOIII May 18 1993 was written in large print across the entire face of the will and on the back of the wilt the following words appeared Revoked beeaasel really prefer my March 2 1983 will 3 Underneath the second envelope was 39l estatorquot s duly executed onepage typewritten will dated March 2 1983 In this will Testator bequeathed 50000 to Cory 10000 to Charity Y aod the residue of the estate to Andy and Billy On October 30 1998 Cory filed a properly acknowledged document with the appropriate persons renouncing all rights Cory had under Testatofs two wills State A does not permit holographic wills Under State A law I an iotestate s heirs are the iz1testate s surviving children and 2 the issue of any child who predeeeases the intestate take the deceased child s share I Under what theory eoold the March 2 1983 wi1l39be probated and to whom would the estate be distributed under that will Explain 2 Under what theory could the September 10 1989 wit be probated and to whom would the estate be distributed under that will Explain I4 July 2000 Question 2 Analysis DECEDENTS ESTATES ILF ILG Ill Question 2 Attalysis Legal Problems la is the March 2 will entitled to be probated because it was revived when Testator s September 10 will was revoked b Assuming the March 2 will is entitled to be probated should 10000 be distributed to Charity Y or was the bequest to Charity Y satis ed before Testator died by Testatofs gift to the charity of 15000 on February 1 1990 L c Assuming the March 2 will is entitled to be probated did Cory timely disclaim his interest in the 50000 bequest and if so does the bequest pass to Gary or to the residuary legatees under T estator s will 2 if the March 2 will was not revived can the September 10 will be probated under the doctrine of dependent relative revocation and if so how will the estate be distributed DISCUSSION Point Goats The March 2 will can be probated if State A permits a will that has been revoked 3040 by the execution of a later will to be revived if the later will is revoked If the March 2 will is revived Andv and Billy take the residue but how the general bequests will be distributed detgerads on the resolution of two separate issues The execution of the September 10 will revoked the March 2 will under the laws of all states Under the common law however the later revocation of the second will revives the first will This role followed from the principle that wills only speak at the time of death and since the second will was revoked and therefore is a ability only the prior will had legal effect Because of the belief that the commonlaw rule frustrated the intent oftestators who revoked the later will with the intent ofdyirig intestate many states adopted statutes rejecting the commonlaw revival role These stattttes can take at least twoforttis One is that the revocationiof the seeondwill does notrevivie the earlier will See eg Iowa Code 633284 The other form as exempli ed by the Uniform Probate Code 2509a is that the revocation of the second will does not revive the earlier will unless it is evident from the circumstances of the revocation of the subsequent will or from the testator s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed A will may be revoked by a cancellation See geaerollvv Unit Prob Code 2507 When revolting the September 10 will by cancellation the result of writing VOID across the face of 43 July 2000 Question 2 Analysis the will Testator explicitly indicated that he preferred his March 2 will This statement is evidence of his intent to revive the earlier will Thus under either the cotntnon law revival rule or a statutory substitute incorporating an intent standard the March 2 will is entitled to be probatcd Only if State A has an absolute nomrevival role would the March 2 will not be entitled to be probated i Point Oneibl If the March 2 will is probated then 10000 should be distributed to Charity Y 1 O20 Testator s lifetime gift to Charity Y is not a gift in satisfaction of this general begnest Under the common law if subsequent to the execution of a will a testator gives property to a person who is named as a general legatee in a will executed by the testator prior to the making of the gift a rebnttable presumption arises that the testator intended the gift to be in satisfaction of the general legacy This is known as the doctrine of satisfaction or adernption by satisfactionquot See gancrolbi W McGovern SK1trtz amp J Rein Wills Trusts and Estates 30 198 8 The cotnnionlaw rule is often abrogated or modi ed by statute For example under the Uniform Probate Code 2 609aii a gift to a legatee is not in satisfaction of the legacy unless the testator declared in a contemporaneous writing that heshe intended the gift to be in satisfaction of the bequest In other states the gift is not in satisfaction absent some writing evidencing testatofs intent that the gift be in satisfaction of the bequest However the ultimate result in this case is arguably the same whichever version of the doctrine applies because it appears Testator did not intend the 15000 gift to be taken into account in determining the amount distributable to Charity Y under the will This is evident from the language in the document found with the check that the 15000 was one of many gifts and that Testator hoped to be in a position to make future gifts to Charity Y because the charity s work was so important to him While it might be argued that the mere fact that Testator kept the check and note with his will evidences an intent that the gift of 15000 be in satisfaction of the bequest that argument seems weak in light of the more speci c language on the note evidencing Testator s intent to continue making gifts to the charity Point Onecl Iftbe March 2 wili is entitled to beprobated Cozy timely disclaiined his interest 1020 in the 50000 oeguest The beguest should pass to his child Gag The typical disclaimer statute provides that a disclaimer rnustbernade within nine months of the testator s death The Ilifl II10I1th period is typical because state disclaimer statutes are designed toicornport with thefiederal dis cl airner rules See genera y Int Rev Code 25132 Since Cory disclairned on October 30 1998 Cory s disclaimer was made within nine months of Testator s death and therefore was timely The typical disclaimer statute further provides that ifa timely disclaimer is made the disclainied property interest passes as if the disclaiinant died before the testator See or g Unif Prob Code 280 1 dl In this case the disclairned property interest would pass in accordance with any applicable lapse statute to C ory s child Gary The lapse statute applies because 1 Cory is a 44 a cm July 2000 Question 2 Analysis descendant ofTestator a typical requirement of a lapse statute 2 Cory has issue who survive Testator another typical requirement of a lapse statute and 3 Testator s will did not specially condition Cor s bequest on Cory surviving Testator See geneally J Ritchie N Alford R Ef and dz 1 Debris Deeedem s Estates and rusts 1021 8th ed 1993 of Unif Prob Code 2603 applying the lapse statute in some cases even if the bequest is expressly conditioned on survivorship Point Two If the March 2 will was not revived then the September 10 will is entitled to be 35 45 probated under the doctrine of dependent relative revocation EDRR if it is established that Testator would have ereferred the disposition in the September 10 will to intestacy Otherwise Testator died intestate The March 2 will was revoked by the execution of the September 10 will regardless of whether the latter will was revoked See generaiiy Unit Prob Code 2507al If the March 2 will is not revived either the revocation of the September 10 will is ignored under DRR or Testator died intestate Most likely Testator died intestate If a valid will is revoked by a physical act such as cancellation under 39I estator s mistaken belief that in doing so Testator could revive an earlier will the revocation of the will can be ignored under DRR Because DRR is an intenteffectuating doctrine it applies only when the court determines thatthe testator would prefer the disposition in the revoked will to thatresulting from a determination that the testator died intestate See generally Estate ofA Ibztrrz 18 Wis 2d 340 118 NW2d 919 1963 Courts are more likely to apply DRR if the distribution of the estate using DRR approximates more closely the distribution testator actually intended than the distribution that would occur if DRR did not apply When that is not the case courts are more likely to reject using DRR F or example if the intended revocation of the September 10 will is ignored using DRR and thus that will is entitled to probate Testatofs entire 100000 estate would be distributed equally to Andy and Billy Cory on the other band would take nothing Alternatively if the September I 0 will is revoked and DRR is not applied T estator would be deemed to have died intestate and Testator s entire estate would be distributed in equal thirdsto Andy Billy and to Cory since Cory s disclaimer did not apply to any intestate share It would appear that a distribution of 33000 33000 and 33000 to Andy Billy and Cory ignoring DRR and using intestacy approximates more closely what Testator actually intended 50000 to Cory 10000 toflharity Y 20000 to Andy and 20000 to Billy which was the distribution under the March 2 willwthan a distribution of50000 to Andy and 50000 to Billy applying DRR and distributing the estate under the September 10 will Here Cory gets less than intended but at least something while Andy and Billy get somewhat more than Testator intended Thus not applying DRR arguably more closely approximates Testator s intent Of course this is a close question and examinees could argue either way lt14 February 1999 Question 3 Question 3 Testatofs validly executed will dated September I 1996 reads as follows I Testator being of sound and disposing mind give All of my tangible personal property te Sister 1000 to Uncle to be paid from my bank account at Bank 5000 to Friend 100 shares of ABC common stock to Brother The residue of my estate to Charity a charitable organization quot l 4quotquotquot At Testators death T estators estate was valued at 50000 This included tangibles valued at 1000 Testatorls bank account at Bank with a balance M3750 and 100 shares of ABC common stock valued at 20000 ABC is a closely held corporation Testatcr bought the 100 shares in December l995 The balance of Testator s estate was held in publicly traded securities Testator died in an automobile accident resulting from Testator s negligence The other party in that accident led a claim against Testatorls estate in the amount of28000 This claim was duly allowed by the court having jurisdiction over the estate and 28000 of the publicly traded securities were liquidated to pay the claim There are no other debts expenses or taxes for Testator s estate Sister Uncle Friend and Brother survived Testator Uncle timely disclaimed any interest in the 1000 bequest Uncle s child Son also survived Testator How should Testator s estate remaining after the payment of the 28000 claim be distributed among Sister Uncle Friend Brother Charity and Son Explain vnunwmewum February l999 Question 3 Analysis DECEDENTS ESTATES 111 Question 3 Analysis Legal Problems I Generally what is the order of abatement among general speci c demonstrative and residuary bequests 2 Is the bequest to Uncle general specific or demonstrative for purposes of abatement 3 Should the bequest to Uncle that does not abate if any pass to Uncles son who survives Testator or as a part of the residuary bequest 4 Is the oequest of the ABC common stock general or speci c for purposes of abatement DISCUSSION Point One Typically when assets of an estate are insufficient to pay all ciairns against the 20 25 estate the beggests abate is the following order to pay claims residuagy bmuests general bequests and speci c heguests Beguests charged to a specific fund for their source of payment are specific to the extent of the fund to the extent they exceed the fund they are general Bene ciaries under wills are entitled only to the net value of estate assets The net value represents what remains of the decedeets assets owned at death after the payment of debts expenses and taxes All states have statutes known as abatement statutes that determine how debts expenses and taxes should be allocated among the bene ciaries ofresiduary speci c and general tegacies Invariabiy state statutes provide that unless the will otherwise provides iegacies abate in the foliowing order to pay debts expenses and taxes 1 residuary devises 2 general devises and then 3 speci c devises See eg Uniform Probate Code 3902 Many abatement statutes also provide that quota general devise charged on any speci c property or fund is a speci c devise to the extent of the value of the property on which it is charged and upon the failure or insufficiency of the property on which it is charged a general devise to the extent of the failure or insufficiency quot Id The general and specific bequests coder the wilt add up to 27000 The value of the estate after payment of the 28000 claim is only 22000 Because the remaining value of the estate is 5000 less than the general and speci c bequests the residuary bequest abates completely 29 U39I39Iv quotl I I39gt muuttryMmIur February 1999 Question 3 Analysis Moreover the 5000 shortfall must be allocated among the nonoresiduary legatees A bequest is speci c if the subject matter of the bequest is speci c property See generally W McGovern S Kurtz amp J Rein W is Trusts and Estates 101 at 398 A bequest is general if it can be satis ed with any estate assets Id Typically a bequest of a speci c dollar amount is general since it can be funded with cash or other property having a value equal to the amount of the bequest A bequest of a specific dollar amount that is payable froro a designated fund is a demonstrative bequest Id at 399 To the extent of the designated fund a demonstrative bequest is speci c since it is the designated fund from which the bequest is to be paid A demonstrative bequest is general however to the extent the fund is insufficient to pay the dollar amount of the bequest in full Point Two The bequest to Uncle of 1 000 to be said from Testatofs bank account at Bank 0035 3 a demonstrative is easy Therefore it is soeei c to the extent of 750 and general as to 250 Ace rdiri l onl 950 is subect to ossible abatement as a error i legacy and than only in proportion to the other general legacies available for the payment of debts is light of the de nition of a demonstrative legacy see Point One the bequest to Uncle is part specific the 750 in the bank account part general 250 for purposes of the abatement statute See UPC 3902 The portion that is speci c will not abate if there are suf cient general legacies under the will to pay debts expenses and taxes that exceed the value of the residualy estate Therefore the amount of the abatement depends on what the aggegate value of all the general legacies is There is no doubt that the bequest to Friend of 5000 is a general legacy If Friend39s bequest is the only other general legacy in addition to the 250 to Uncle then 250 5250 times 5000 or 238 of Uncles bequest abatcs to pay the 5000 of claims for which the residuary estate is insufficient and 4762 of raenaa bequest abates as well This would leave Uncle with 762 and Friend with 238 Ofcourse Sister gets the taogibles of 1 000 and Brother gets 20000 of speci cally bequeathed closely held corporate stock This fully accounts for the 22000 available for distribution If on the other hand the bequest of the stock valued at 20000 is also a general legacy which is unlikely see Point Four then 25025250 or 50 of Uncle s bequest abates 991 of Friends bequest abates and 3959 of Brothers bequest abates As noted in Point Four below this is unlikely Point Three The interest of a disclaimant in either a speci c general or derooastrative bequest 1525 passes as if the disclaimant predeceased the testator Unless the will otherwise provides if the clisclaimaot is aoerson described in the apglicsable antiloose statute the discl aimed interest passes to the disclaimanfs surviving issue 30 February 1999 Question 3 Analysis Under the typical disclaimer statute if a disclairnarit files a timely disclaimer generally within nine months of a testatofs death the disclairned interest passes as if the disclairnant had predeceased the testator See UPC 2801 In other words the typical disclaimer statute creates the fiction that the disclaimant predeceased the testator Under the typical lapse statute if Uncle had predeceased Testator the bequest to Uncle does not lapse it passes to Uncles issue F or example under UPC 2603 a devise to a person who is a descendant of the testator s grandparents does not lapse if the deceased persons descendants survive the testator Rather a substituted gift is created in the deceased person39s descendants Under this and other typical lapse statutes a substituted gift is created in Uncles child Son If an examines assumes there is no lapse statute which would be the common law rule the amount to abate reduces from 5000 to 4000 and the entire amount would come from Friends general bequest This results from the fact that the bequest to Uncle is available to pay part of the 28000 claim against the estate leaving only 4009 to come from the nonresidoary bequests Point Four The bequest of stock is most likely speci c lS 3 The classi cation of a bequest as either general or speci c may depend on the intent of the testator See gerzeroily Paolus Special and Genera Legacies Tesrator is Intent 43 Iowa L Rev 467 468 I958 The classi cation of bequests of stock has proved roost troublesome If the language in the will evidences that the testator owned the securities at the time the will was executed such as a will reading quotI give my stock in ABC Corporationquot courts generally conclude the gift is speci c This construction is based on the fact that the testator was referring to securities that he or she actually ovmed Absent possessive words courts use other factors to assist in the classi cation of the bequest For example if the stock is of a closely held business the gift is usually speci c on the theory that an executor could not readily acquire the stock for the earned legatee on the open market which would be the expectation if the bequest were classi ed as general See eg In re Backs Estate 186 P2d 708 Calif 1949 Also even if the testator did not use the possessive word 3939my to describe the gift if when the will was signed the testator owned shares equal to the amount described in the will courts generally construe the gift as specific Paulus supra at 495 On the other hand if the testator did riot then own shares at least equal to the amount of the gift the tendency is to construe the gift as general See eg Paulus supra at 493 In this case ABC stock is closely held and at the time the will was executed Testator39owried 100 shares Thus more likely than riot the gift will be construed as speci c and therefore will abate only if the residuary bequest and the general bequests are insufficient to pay all claims against the estate Here the general legacies are suf cient to pay the amount of debt that could not be paid from the residuary estate Thus the bequest of the ABC stock to Brother should not abate at all 31 July 1999 Question 6 Question 6 Tom and Wanda were married arid had a child Anna A er Wanda died Tom had a aonmarital relationship with Nancy who had a child Bill from a prior marriage At the time the relationship between Tom and Nancy began Anna was 12 and Bill was 17 Three years after the relationship between Tom and Nancy began they had a child Chris Shortly thereafter Nancy was killed in an automobile accider1t Tom continued to raise all three children as his own but took so steps to adopt Bill Although he acknowledged he was Chris s father he took no steps to establish his paternity judicially Dating the 20 years following Nancy a death the relationship between Tom and Anna soured but Tom srelatioriships with Bill arid Chris blossomed Eventually Tom came to have little to do with Anna Last year things came to a head At Thanksgiving dinner Tom handed each of the children a check in the amount of 50000 Each check was accompanied by a personal handwritten note signed by Tom The note to Anna read quotYou have been a constant disappointment to me over these years Take this but expect no more from mequot The notes to Bill and Chris which were identical read quotYou have been a wonderful child to me Use this gift well I love you very muchquot Four months ago Anna died survived by her son Danny One month later Tom died intestate leaving a probate estate of 250000 Tom was survived by Bill Chris and Danny A state statute provides that property descends to issue if the iatestate has no surviving spouse it de nes quotchildrenquot as children born during marriage adopted children and children born out of wedlock provided paternity is established judicially or is otherwise recognized by the father State law prohibits holographic wills How should Toofs estate be distxibuted Explain 21 July 1999 Question 6 Analysis DECEDENTS ESTATES WILLS Question 6 Analysis Legal Problems 1 Is Bill who was never adopted by Tom but who was raised by Tom entitled to a share of I o1nquots estate 2 Is Chris born to Tom out of wedlock entitled to a share ofToni s estate 3 Is the lifetime gift to Anna as advancement and if so is it taken into account in computing Danoy s share of Tonfs estate 4 Would any of the lifetime gifts to Bill or Chris be taken into account in computing any share of Tom39s estate to which they might be entitled DISCUSSION In all states an intestate s estate is distributable solely to the intestates surviving issue when the intestate dies without a spouse as Tom did In this problern the question arises who among Anna Bill Chris and Danny are issue of the intestate and whether any ofthe lifetime transfers to them are advancements for purposes of computing their shares in quoti orn s estate Under the laws of all states and here there is no doubt that issue borninwedlock are an intestates heir Thus Danny s rights as an heir are unquestioned However the amount of his share could be affected by the doctrine of advancements See Point Three Point One Bill would not be entitled to any share ofTom s estate unless Bill could establish 3035 that he was entitled to a share of the estate under the doctrine of equitable adogtionquot or adoptiog by St03pelquot However it is unlikely Bill meld success full claim to have been e tzitabl a o t d Bill was never legally adopted by Tore and is fact has no biological or legally created relationship to Tent Ttats without more Bill is entitled to no share ofTom s estate However ifBil1 could establish an adoption by estoppel Bill could inherit from Toni as it Bill were Toms legally adopted child Courts apply the doctrine of adoption by estoppel or equitable adoption where there is a nding of either an express or implied promise to adopt and the child quotstood from an age of tender years 61 July 1999 Question 6 Analysis in a position exactly equivalent to a formally adopted childquot Wheeling Dollar Saving it Trust Co 1 Singer 1622 W Va 502 250 SE2d 369 l 978 The facts in this case do not appear to support BiIlquot39sclairn to an equitable adoption because among other things there is no express promise to adopt and Bill was well beyond quottender yearsquot before he even came into Torus home Further a promise to adopt is not likely to be implied Courts have rarely implied a contract to adopt even when a stcpparent raises a stepchild which is not even the fact in this case See Matter of Van Cleaves Estate 6l0 SW2d 620 Mo I980 l Even ifTon1 had rnarried Nancy Bill as a stepchild would not have been entitled to any share of Tom39s estate since stepchildren are not children for purposes of inheritance under the state law Point Two Chris born to Torn out of wedlock is entitled to a share of Tours estate because 2530 Torn recomiacd his paternity of Chris Chris is a biological child of Torn However Chris was born out of wedlock While the common law prohibited a child born out of wedlock I1 1 inheriting most states have enacted statutes allowing children born out of wedlock to inherit under certain circumstances Typically an illegitimate child can inherit from a deceased father provided paternity is proved Laws that preclude an illegitimate child from inheriting from the father are unconstitutional Trimblc v Gordon 430 US 762 1977 States differ however regarding the burden of proof that a child born out of wedlock must meet to establish paternity ranging from quotpreponderance of evidencequot in some states to evidence that is quotclear and convincing in other states Some states may also impose additional requirements such as recognition of paternity in writing or by some other set some may require a judicial order of paternity Under the Uniform Probate Code a person is a child of his orher biological parents without regard to the parents rnarital status UPC 2 l4a In this problem a speci c statute deals with the right of a child born out of wedlock to inherit from the father Although Tours paternity was never judicially established Chris can prevail if paternity was otherwise recognized by Tom This should be easy for Chris to prove or demonstrate First the facts state that Tom had acknowledged that he was Chris father Second Tonfs letter to Chris at the time he gave Chris the 50000 referred to Chris as his child Point Three The lifetime gift to Anne was probably intended minimally as an advancement 2025 and if so intended reduces the share of Tom39s estate passing by intestacy to p Anna39s child if the govg rning statute were to so provide I Historically a lifetime transfer to a person who was the transferor39s heir was treated as a down payment also known as an advancement of the transfereds share of the transfercfs estate Most states now treat such transfers as gifts rather than advancements but preserve the concept of advancements under certain circumstances State laws vary greatly on their laws of advancement and particularly on what acts are sufficient to rebut the presumption that a lifetime transfer is a gift and not an advancement For etarnple under the Uniform Probate Code a transfer can be an 62 mLmami Jnly 1999 Question 6 Analysis advancement quotonly if i the decedent declared his or her intent to that effect in a contemporaneous writingquot or the heir acknowledged the transfer to be an advancement or the decedent s conten1poraaeous writing otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent s intestate estatequot UPC 2 l09a On the other hand in many states no writing is required and any competent proof is admissible to establish the transferofs intent that the transfer was an advancement See W McGovern S Kortz amp J Rein Wills Trusts and Estates 15 at 2627 1988 hi this problem it could be argued that Tom would have intended any share Anna could claim in Tonfs estate to be reduced by 50000 This is evidenced by the contemporaneously written note Tom gave Anna stating quotYou have been a constant disappointment to me over these years Take this but expect no more from me While Tom did not expressly state that the 50000 was an advancement it can be argued that this note evidences an intent to limit the amount Anna would receive from Tom in the future Furthermore when this note is read alongside the other notes it seems clear Torn did not intend Anna to receive any more from his estate It could also be argued that the note expresses nothing more than Tonifs statement that Anna would be receiving no more gifts from Tom and that Tom did not intend the note to evidence any intent that Anna not take an intestate share This argument seems less pl ansible in light of all the facts If the transfer to Anna is an advancement since Anna predeceased Torn it remains to be determined what effect the transfer to Anna has on the share of Anna39s son Danriy Tom39s grandchild who takes whatever share of Tom39s estate Anna would have been entitled to take State laws differ on the question of whether the share of an heir of an advances is diminished by advancements to his or her ancestors Compare NY EPTL 215 and 111 Rev Stat ch 755 525 share of successor to advarocee affected with Tex Prob Code Ann 44 share of successor of advances unaffected unless transferor by contemporaneous writing indicates it should be Thus whether the grandchildfs share is affected depends on underlying state law which the facts do not specify Eoint Four The lifetime gifts to Bill or Chris were not intended as advancements and there 510 fore to the extent either of there is entitled to a share o Tonrs estate the would not reduce the size of the share either of them would otherwise be entitled to receive In his notes to Bill and Chris Tom referred to the 50000 as gifts Farther no language in the note suggests that Tom intended the gift to reduce the size of the share either Bill or Chris would receive in Torrfs estate Of course Bill may not be entitled to any share of Tom39s estate in which case the question of whether the 50000 transferred to Bill is an advancement is moot in summary Chris is treated as an heir the gift to him is not an advancement Bill is probably not an heir and whether Danny39s share is reduced by the advancetnerit to his mother is unclear 63 February 1998 Question 3 Question 3 Child was the biological daughter of Dad and Mom When Child was an infant Husband and Wife legally adopted her in State A with the consent of Dad and Morn All the parties then lived in State A Threeppfears after Child was adopted Husband died Thereafter Wife married New Husband At the one of thisiaiaiiiage quotiCii1d i as l iir CyeafswoldL39itFilve i eai iquoti1aiei39 1l7 ir b intestate domiciled in State A He was survived by Wife Child and his closest blood relative Uncle Although New Husband never adopted Child Child resided with Wife and New Husband until New IIusbind s death New Husband raised Child and treated Child in all respects as if she were his biological child l Alter New Husband39s death Wife moved to State B and established her domicile there She died intestate in State B survived by Child and by Grandmother Wife39s closest living blood relative At the time of Wifefs death she owned property in State B and a summer vacation home in State A Grandmother who was a domiciliary of State B had a close relationship with Wife and Child One week after Wife died Grandmother died testate Her valid will executed two years earlier bequeathed her entire estate to Wife or quotif Wife predeceases me to such of Wife s children who survive me The laws of intestate succession in States A and B provide that onehalf of an intestate decedent39s property is distributable to the decedent s spouse and the other half to the decedent s issue per stirpes or absent such issue to the dccedenfs ancestors or if none to the decedent39s collateral blood relatives The law of State A provides that an adopted child cannot inherit orn the biological parents but 0 inherit om the adopting parents as if the adopted child were a biological child of the adopting parents The law of State B provides that an adopted child cannot inherit from an adopting parent who died intestate However State B law concemiog the construction of wills provides quotIfan adopting parent leaves a testamentary class gift to his or her children adopted children are included in the class gilt There are no other governing state statutes I is Child entitled to inherit om Nev Husband39s estate Explain 2 Is Child entitled to inherit from Wife39s estate Explain 3 Is Child entitled to inheiit from Grandmother39s estate Explain February 1998 Question 3 Analysis DECBDENTS ESTATES IB 1 IL CONFLICT OF LAWS Question 3 Analysis Le a Problems 1 is Child entitled to take oneltalf39ofNew Heeeamte estate as 0G t it F G NewHusband39sissueonthe ground that Child had been equitably adopted by New Husband 2 Is Child entitled to Wife39s estate located in State A or State B 3 Is Child entitled to Grandmother39s entire estate as the alternate bene ciary named in Grandmothers will DISCUSSION Point One Chil i entitled to onehalf of New as T5 estate onl if t te A reeo izes the 2030 doctrine of site le ad ion and facts canoe establi hed to r ve ere ad been g eggitable adogtion among other things to nd an gtQaitable adogtion a eourt might rmuire that New Husband had promised to adopt Child agd if so Chiid q is e 1 Irtt ate f taeosnotreeo iaedotrineor hid cannot rove the r air lements then ld cannot inherit fr 111 N Ilush d estate Under the law of State A an adopted child is entitled to inherit from the estate of the deceased adopting parent Thus if Child had been legally adopted by New Husband Child would have been entitled to receive onehalf of New Husband39s estate The other half according to the governing statutes would have passed to Wife as New Husband39s surviving spouse In fact Child was not adopted by New Husband Thus whether Child can inherit from New Husband depends on whether State A recognizes the doctrine of quotadoption by estoppel or quotequitable adoption If State A does not recognize the doctrine of adoption by estoppel Child cannot inherit Many states however recognize the doctrine of adoption by estoppel See generally Note 58 Va L Rev 727 1972 Where recoglized an equitably adopted child is entitled to inherit from the adopting parentquot in the same manner as a child who had been legally adopted through the appropriate statutory procedures While there are vari ations among the states most states require the child claiming to have been equitably adopted to prove by clear and convincing evidence that quothe has stood fromaa age of tender years in a position exactiy equivalent to a formally adopted childquot See Wheeling Dollar Saving amp Trust Co 1 Singer 16 WVa 502 250 SE2d 369 1978 The requirement is that the adopting parentquot have treated the adopted child in the same manner as a parent generally would treat a child Relevant factors establishing the relationship might include 1 the adopting parent39s bestowal of love and affection on the child 2 the adopting paret1t squot 24 February 1998 Question 3 Analysis performance of parental duties toward the child 3 the child39s obedience to and companionship toward the quotadopting parentquot 4 the child s reliance on an adoptive relationship and 5 the quotadoptive parentsquot holding out the child as his child Id at 509 Many courts also require the child to prove that the quotadopting parentquot had promised agreed or attempted to adopt the child formally See eg Covonough v Davis 149 Tex 573 235 SW2d 972 1951 The facts state that New Husband raised Child and in all respects treated Child as if Child were his biological child This statement might be construed to suggest that the ve elements mentioned above were satis ed However even if that were the case in many states there must also have been a promise or agreern out to adopt the child and no facts suggest such a promise was made i 39 here If a promise or agreement were required Child could not claim an equitable adoption If a prorhise or agreement is not required an equitable adoption might be formed Absent an equitable adoption New Husband39s estate would pass to Wife and Uncle as New Husbands closest living blood relative In a jurisdiction recognizing the doctrine of equitable adoption if Child could prove sufficient facts to establish a basis for invoking the doctrine New Husbands estate would be J distributed onehalf to Wife and onehalf to Child Eoint Two Child is not entitled to inherit Wifes groom in tate B but is entitled to inherit 3040 Wi do real r in State A State B law control inh 39 n ri hts for all of ife39 property other than the real progeny located in State A because State B tvas the state of Wifefs domicile at the time of her death State A law however controls the disgosition of the State 5 real grogerQ Whether Child is entitled to inherit as an heir of Wife depends upon whether the law of State A permitting inheritance where Child was adopted and certain real property is located or the law of State B not permitting inheritance where Wife was domiciled at the time of death apply According to Restatement of Conflicts Second 262 whether an adopted child is entitled to inherit the property of an intestate depends upon the law of the intestate s domicile at the time of dwth Thus the comments provide that if the law that would be applied by the courts of the state where the decedent was domiciled at the time of his death does not allow an adopted child to take at distributive share he will not do so although the law governing the adoption would allow hire to takequot Conunont d Restatement of Conflicts Second 262 See also Unit Prob Code 1301 Pozzi v Taylor 342 NW2d 481 Iowa 2984 This rule might be justified on the ground that the state of the iutestatequots domicile at the time of intestate39s death has the most sigti cant contacts with respect to this issue as to how the intestateis estate should be administered as well as the most signi cant interest in determining which children in the state should have claims against a decedent39s property Furthermore estate adrninistration is eased if only the laws of one jurisdiction control for purposes of determining the distribution of the decedent s personal property g M g L However this rule is inapplicable to real property located outside cfthe state of the intestatds domicile Under Restatement of Conflicts Second 263 the law governing the disposition of real property from an intestate is the law of the situs Thus Child is entitled to inherit the State A real property because State A permits an adopted 25 February 1998 Question 3 Analysis child to inherit from his or her adopting parent On the other hand Child is not entitled to inherit Wife s State B property a 139it3itttfI 11rurz3B Child is not entitled to take Grandntothe s estate as the alternate bene cial undo 3040 her will under the State B glass gifts statute Howeveg there are good gmtnents that under generally applicable roles for construing wills Child should take under Grandntothefs will because that is what she intended Whether Child is entitled to take under Grandniothefs will also depends on the law of State B bedause she died a domiciliary of State B State B law provides that an adopted child cannot inherit ff390II1 an adopting parent who dies intestate It also provides that if an adopting parent leaves a testamentary class gift to his or her children adopted children are included in the class giftquot emphasis added Under this statute if Wife had bequeathed property to her quotchildrenquotCl1ild would have been entitled to share in that class gift because the bequest would have been made by the adopting parent The statute however does not provide similar treatment for class gifts to grandchildren Thus Child could not rely on this statute to argue that she is included in the class gift to children On the other hand Child may be included in the class gift under Grandmother39s will under general commonlaw principles The governing principle is that in construing a testatofs will courts should whenever possible give effect to a testator s intent Under this quotintent principlequot there is a strong argument that Grandmother intended Child to be included in the testamentary class gift This conclusion is based upon the fact that Grandmother s will was signed two years before she died and at a time when she knew that Wife had only one child and was then a widow with little or no expectation of having more children Furthermore Grandmother was close to the child Although Grandmother wasa socalled quot stranger to the adoptionquot most courts today would include an adopted child within a class gift under the facts of this problem even though no state statute speci cally so provides See generally William S McGovern Sheldon Kurtz amp Jan E Rein Wills Trusts and Estates 22 West Publishing Co i988 26 July 1998 Question 1 July 1993 Question 1 On January 2 I995 Testator died testate in a nursing care facility called Nursing Home Inc Testators will signed on December 28 I994 when she was mentally competent makes two Whequests 1 a bequest of 1 00000 to quotmy heirs at lawquot and 2 a bequest of myresidaaIy estate to Nursing Home where I shall be resident at my death President who is both a director and the president of Nursing Home was named executor Testatorb will was drafted by Lawyer a shareholder of Nursing Hoax e who also serves as Nursing Homes attorney Testatofs only heir is her cousin Charles who last saw Testator nearly a decade ago Throughout the 19803 Testatofs health declined During the 1980s while still living on her own Testator became close friends with President He visited her apartment many times and arranged for employees of Nursing Home to moonlight as nurses in her apartment In 1992 Testator39s physical condition deteriorated so signi cantly that she needed full time care President helped Testator make arrangements for admission to Narsin g Home WhileTestator was livin g at Nursing Home a number of quotestate planning seminars were presented there by Lawyer and a pamphlet titled quotWill Information Guidequot was distributed to the residents The pamphlet written by President had extensive provisions regarding Nursing Homes need for charitable gifts and the proper method of including bequests to Nursing Home in a will On the evening of December 28 1994 after attending an estate plarming seminar given by Lawyer Testator said she wanted to write her will Testator Lawyer and President immediately went into Presidents office where Lawyer drafted the will in full accord with Testatofs instructions and with President present Two visiting friends of Testator were also present in the room when the will was signed They will testify that after Testator declared the document to be her will and asked them to sigi as witnesses she attempted to siga the will However because of a chronic tremor Testatofs hand shook so badly that she was unable to hold the pen despite repeated attempts In frustration she finally asked President if he would write her name for her on the will which President did Immediately therea er the two friends sigied the will as witnesses Alter the will was executed Lawyer gave the will to Testator She later placed it in her night table drawer for safekeeping After I estator s death a nurse found the will in the night table She gave it to President Whoa he read the will he saw that the bequest of 1 00000 to Testator s heirs at law had been crossed out with a straight black line made by a felttip marking pen a a President petitions for the probate of Testatofs will In the petition President alleges that the entire estate should pass to Nursing Home because the will was validly executed and the bequest to Charles had been revoked 1 Oh what gonads might Charles contest the will and how likely is he to succeed on each ground Explain 2 If the will is probated is Charles entitled to the 100000 bequest Explain 12 Ju1y1993 Question 1 Analysis July 1998 DECEDENTS ESTATES ILA ILF 115 itteesissQuestion 1 Analysis I Legal Problems I Did Testator execute the will with the formalities required by the 39 statute ofwills 2 In light of the facts could Testator s will be denied probate or have its probate setaside on the gonads that the Testator executed the will white under the undue in uence of others 3 Was the 100000 bequest revoked by cancellation as a result of the fact that when the will was found the language of the bequest had been crossed out with a black feittip pen DISCUSSION Point One I Under the statutes of wills imposirig minimum formalities of execution the will 2030 appears to have been validly executed in that it was siged for figstator by a third pm 1 ii Testatofs presence and at Testatofs direction and witnessed by at least two wimesses 39 i The Uniform Probate Code 2502 requires either that the testator sign her will or that another sign the testator39s name in the testatofs conscious presence and by the testatofs directionquot This statute in common with most statutes of wilis contemplates the possibiiity that under certain circumstances the testator may be physically unable to sign his or her name While quotthirdparty signingquot statutory provisions were historicai y motivated by a concern that a testator would not know how to write the language is suf cientiy broad to validate thirdparty executed wiils whenever the testatofs signature has been a ixed to the document by another acting at the testatofs direction and in the testator39s presence Whiie the UPC has no declaration or verbal attestation request requirement factualiy both occurred here and the will wouid not fail for want cfdue execution on these grounds if required by the goveming statute Under the facts Testator rst attempted to sign the will on her own When that failed because of her shaking hand she requested President to sign for her which he did in her presence Thus the statutory requirements appear to be fully satis ed and the will was validly executed See generaliy Wiiliern McGovern Sheldon F Kurtz 35 Jan Rein Wills Trusts and Estates 42 Point Togquot l his unlikely luiitierthc facts presented that the court would nd that the will egg 4050 executed by undue in uence e Wills may be contested on a number of grounds inciudiog undue in uence The burden to prove that a will shooid be denied probate on this ground is upon the contestant Ui C 3407 37 July 1998 Question 1 Analysis Courts scrutinize cases for undue in uence when the will leaves property to persons who would not otherwise be deemed to be natural objects of a testator39s bounty In this case it is possible that a court might nd Nursing H onto a natural object of Testator s bounty since she had spent much time there was apparently wellcared for and was not close to her blood relatives To set aside a will on the grounds of undue in uence the contestant must prove that at the time the will was signed the testator was susceptible to undue in uence that the procurer had motive and opportunity to in uence and that the will was a result of the substitution of wills William McGovern Sheldon F Kurta amp Jan Rein Wilis Trusts and Estates 73 As to the first requirement susceptibility the contestant alleges weakened physical state on the other hand the facts state Testator was mentally competent and include no facts suggesting a weakened mental state Motive to secure the bequest and opportunity con nement in nursing home participation in execution are easily demonstrated The most difficult element to prove is substitution of wills If the burden of proof remains on the contestant he cannot merely irnply it from the existence of other elements and substitution by direct evidence is difficult to prove Weakened physical state is not evidence ofwcakened mental state in fact here the Testator was mentally cornpetent when she signed the will lrtherruore there is no evidence that Testatofs ee agency was overcome by President so that the will can be regarded as a product of his volition rather than hers Here for example it appears that Testator initiated the draft of her new will Furthermore Testator had no close relatives who had attended her that she might have preferred to Nursing Home she hadn39t seen Cousin in a decade There is the possibility of arguing that a con dential relationship existed between Testator and President raising a higher degree of suspicion and perhaps even a presuruption of undue in uence While President received nothing under the will jurisdictions usually do not require personal bene t In re Estate ofllzshares 897 P2d 268 OK 1995 However courts have held that the mere showing of a con dential relationship is insufiicient to set aside a will on the grounds of undue in uence Point Three Unless the presumption abogt marks of cancellation fognd 931 a will is overcome 2030 w iohro be ossibl underthe facts th 13 estto Charles willberevoked if e jurisdictiou permits partial rgvocatiogs Most jurisdictions recognize quotpartial revocation by physical actquot UPC 25073 The straight black line through the bequest is a quotcancellationquot within the meaning of the statute since it came in contact with the words of the will When marks of cancellation are found on a will known to last have been in the testatofs possession a presumption arises that such marks were made by the testator with the intent to revoke Sea William McGovern Sheldon F Kurtz 8 Jan Rein Wills Trusts and Estates 52 Under this presumption it would appear that the bequest had been revoked by the testator If the bequest is revoked then it passes as part of the residuary estate to Nursing Home as President claims in jurisdictions that do not permit partial revocations the bequest to Charles is valid because partial revocatious are impermissible The presumption of revocation is rebuttahle The burden to overcome this presumption is on the party claiming that the bequest has not been revoked Here two facts may aid in rebutting the presumption The first is that while the will was in the custody of the decedent until her death and the law therefore presumes that the cancellation was made by the decedent with intent to revoke the will was found by an individual who as an employee of the beneficiary might have an interest in seeing the bequest revoked While this fact alone is probably not sufficient to overcome the presumption there is also the fact that the marks of cancellation were made by a straight black line Testator at the time she attempted to sign the will had a chronic tremor and was in such weakened 38 Juiy 1998 Question 1 Analysis physical condition that she was ineapabte of holding a pen Given that condition it is unlikely that her condition had improved between December 28 when the will was signed and the following January 2 when she died There is aeeerdingly good reason to believe that she did not make the marks on the will In light of this a jury could eonciude that the presumption had been overcome and that the bequest to Charles was not revoked i L If the state does not permit partial revoeatione the bequest to Charles is not revoked 39 February 1997 Question 1 February 1997 Question 1 Husband39s valid will provides 1 Husband leave my entire estate to Wife or if she predeceases me I leave my entire estate in equal shares to my son Son and my daughter Daughter Wife s valid will hequeaths her entire estate to Husband It does not provide for an alternate gift if Husband predeceases her Husband and Wife recently died in a fire in their home The fire was set by Son in his second oor bedroom at 200 am Wife s body was found in her nightclothes in the second floor bedroom she shared with Hus band Ilusband s body was found in his nightclothes at the base of the stairs on the rst oor of their home with his head facing the front door his feet toward the upstairs landing and red marks on his stomach indi cating that he had been crawling down the stairs when he had been overcome by smoke Husband and Wife were survived by Sen and Daughter and by Son s daughter Granddaughter Son claims the re was set inadvertently when a cigarette he was smoking in bed dropped to the mattress causing it to ignite The tire marshal has found traces of a combustible substance on the premises suggesting the possibility that the re may have been set intentionally The local prosecutors however have declined to seek an indictment because although the available evidence indicates that it is more likely than not that Son intentionally set the tire the evidence is insufficient to support a criminal conviction The intestate succession statute of this jurisdiction provides that a decedenfs surviving spouse is his or her sole heir If there is no surviving spouse the decedent s issue take the estate per stirpes This jurisdiction aiso has enacted the Uniform Simuitaneous Death Act I To Whom should Husband s estate be distributed Explain 2 To whom should Wifc s estate be disttibuted Explain February 1997 Question 1 Analysis February 1997 DECEDENTS39 ESTATES ILA 111 Question 1 Analysis Legal Problems 1 Did Husband and Wife die simoitarieousiy or is the evidence sufficient to establish that Husband survived Wife 2 is See barred from inheriting from his parents because he caused the fire that resulted in their death l 3 If Son is barred from inheriting from his parents because he feloniously and intentionaiiy took the lives of his parents to whom should the shares that he would have received from their estates pass DISCUSSION The distribution of the estates of Husband and Wife depends on whether each is treated as having survived the other see Point One on whether Son is barred from inheriting from his parents because he set the re that kiiled them see Point Two and depending on the resolution ofthese issues on whether the share of a residuary legatee who is disquali ed from taking passes to the other residuary iegatees see Point Three Eoim One Under the col ginal Uniform Simultaneous Death Act Husband and Wife would orobabiy not 3545 he treated as having died simuitaneousiy instead Htisbacd wouid orobabiv be treated as having survived Wife However under the revised version of the Act aad the Uuifom Probate Code Husband would be treated as having predeceased Wife because he did not survive her by 120 hours The original version of the Uniform Simuitaueous Death Act provides that Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneousiy the property of each person shall be disposed of as if he had survived emphasis added The Act was revised in 1991 to provide that even iftherc is sufficient evidence to establish that a bene ciary named in the wiil in fact survived the testator a bene ciary is only treated as having survived the testa tor if there is ciear and convincing evidence that he or she survived the testator by 120 hours See Rev Unif Simultaneous Death Act 2 1993 The Uniform Probate Code also treats a bene ciary who does not sut vive the testator by at least 320 hours as having predeceased the testator Uoif Prob Code 2 I 04 2702 Under the original Act a jury mightconclude that there was suf cient evidence to estabiish that Hus band in fact survived Wife even though both died in the re Evidence supporting that conclusion includes 1 the fire was started on the second oor of the home 2 the spouses were apparently in bed when the fire I8 February 1997 Question 1 Analysis occurred based upon the time of the fire and the fact that both spouses were in their bedclothes and 3 Wife was found in the secondfloor bedroorn while Husband was found on the first floor at the bottorn of the stairs suggesting that both of them attempted to exit the room but that Wife was overcome by smoke before she 39 could reach the stairs This implies that she died before she could get out of the bedroom whereas he was able to get out of the bedroom and crawl down to the iirst oor as evidenced by the position of his body and the marks on his body a c Of course if the revised Act or the Uniform Probate Code applied Husband would be treated as having predeceased Wife Although he may have survived her for some brief period of time he did not survive her by I20 hours 5 days Because Wife did not in fact survive Husband for purposes of distributing Husband s estate she would not be treated as having survived him under either version of the simultaneous death act Therefore Hus bandls estate passes in equal shares to Son and Daughter as provided in Husband s will unless Son is pre vented firorn inheriting see Point Two l i If Husband is treated as having survived Wife for purposes of distributing Wife s estate the estate passes to Husband under her will and it then passes to the successors of IIusband s estate On the other hand if Husband is treated as not having survived Wife Wife s estate passes by intestate succession to her heirs because her will did not provide who would take her estate if Husband predeceased her and autilapse statutes generally do not save gifts to the spouse who dies before the testator See Unif Prob Code 2603b Wife s heirs would be her children Daughter and Son unless as discussed in Point Two Son is barred from inheriting l l39 Qin1I1tv Whether Son is barred from inheriting from his parents because he caused the re that 3545 resulted in their deaths dccends upon whether the probate court would conclude that he feloniously and intentionallv took the lives of his parents If so he would be barred from inheriting If not he would be entitled to claim as heir or devisee from his parents Under the Uniform Probate Code and most modern cases a person who feloniously and intentionally kills a decedent is barred from claiming a share of the decedent39s estate as either heir or bene ciary under the decedeufs will Unif Prob Code 2803 William M McGovern 31 Sheldon F Kurtz amp Jan E Rein Wills Trusts and Estates 24 at 72 1988 In a few states only murderers are disquali ed and in a few states all felonious killers are disquali ed McGovern ez oi at 3972 Generally the decedent s estate is then disposed of as if the killer had predeceased the decedent Id A conviction of felonious and intentional homicide conclusively establishes that the killer feloniously and intentionally killed the decedent for purposes of the probate proceedings See Unif Prob Code 2 803g in some states inheritance is barred only if there has been a conviction In most states if there has been no conviction the court having jurisdiction over the decedent s estate must determine whether a pre ponderance of evidence supports the conclusion that the alleged killer feloniously and intentionally took the life of the decedent Id Some states however use a clear and convincing standard rather than a preponder ance of the cvidence39sta39I1dard See eg Estate ofSo art I02 Wis2d 79 306 NW2d 27 1981 See genea rzfly McGovern at at at 24 at 7374 in some states where there is no slayer statute courts apply the equitable principle that a vvrongdoer can not pro t from his own wrong to prevent the killer from inheriting In such states the court is likely to hold that the killer succeeds to the property of the deceased victim but holds it as constructive trustee for others See eg Estate ofMahoney I26 Vt 3 1 220 A2d 475 1966 The facts say that there is sufficient evidence to establish by a preponderance of the evidence that Son intentionally set the fire Ifthe jurisdiction uses this February 1997 Question 1 Analysis standard of proof Son would be barred from taking his parents estates and they would be distributed as dis cussed in Point Three t ifSon is not barred from inheriting from his parents their estates pass to hire and Daughter as described at the end of Point One Point Three If Son is barred from inheriting from Wife her estate passes to her heirsw randdaughter I525 and Daughter If Son is barred from inheriting from Husband his onehalf share passes to Granddaughter Wife s estate As noted above if Husband is treated as having survived Wife he takes her entire estate under the terms of her last will and it will be distributed to those entitled to take his estate If he is treated as having predeceased her her estate passes to her heirs Son and Daughter unless Son is barred from inherit ing from Wife The bequest to Husband is not saved by a lapse statute because those statutes do not apply to bequests to spouses lfSon is barred he is treated as having predeceased WifeUnif Prob Code 2803b and 2801 dl Under intestate succession statutes Son39s chiid Granddaughter takes by right of repre sentation the one haif share Son would have taken Unif Prob Code 21031 Husband quot s estate As noted above if Husband is treated as having survived Wife his estate passes to the bene ciaries named in his will Son and Daughter unless Son is barred from inheriting Husbands estate If Son is barred the question arises whether Sonquots one half share passes to Granddaughter Son s child or to Daughter the other bene ciary named in Husband s will As noted above when a person is barred from in heriting because he feloniously and intentionaliy kilied another the victim s estate passes as if the kilier pre deceased the victim See Unif Prob Code 2803b and 280ldl The argument for Granddaughter is that Husband s wili did not expressly condition the gift to Son and Daughter on survivorship and that his will did not provide that the share of either who predeceased him should pass to the survivor Furthermore under the typical state autilapse statute the share of any deceased bene ciary such as Son passes to that bene ciary s surviving issue unless the will otherwise provides See Uniform Probate Code 2603b Under this analysis Sou s onehalf share passes to Granddaughter Daughter however might argue that Surfs onevhaif share passes to her under the39 residue of a residue rule Under this rule a residuary bequest that fails to take effect ordinarily passes to the surviving residuary legatee See Uriif Prob Code 2604b If the analysis ends there Daughter takes all of IIus oaud s estate However under the Uniform Probate Code Granddaughter wouid take the share that Sen would have taken because Unit Prob Code 2604a provides that the antilapse statute prevails over the rule regarding multiple residuary iegatees quotEH1 gitxiy 3 Quzatiaa if S man 7 ampi 3 i39 rm39ti i fquoti 73 1i39ifi 1 hank 211 P f z i f i 531 111 aaarim 3 0 5 Vu At m 0P b is if 339iTquot EuquotT39 i i asE r6 i 1 mi aa2ia331 3 ewsiias 3119 ihig Seesaw was Kim a n i f f gil ammlazal 33 S 7 Ba39 I139i r39l 39t39 7 quot39 139 iria i1 1 f r tfi 353 332 E73j i 3 i i with rig 1i413zi tri raIigtL 5 E B r1 imd ii ma15 ga rsi 4 1m39iEt s a m3 st a1 l3a I aaf2 p at Em ea 1 dmtizg ggamdihis smug y ars i1 cq i 1I 7ii T 1a7E Rx 331 a 1 3amp away isxzsxzia az1 3rm39s39e izs3 saw Ezgmza iamt 3 Xt 0 w aamm this amm am swam x 5321 af cfr 2n1am rgg a n1acam Rt Masai may a M Eaxrz dmw i I 391 39 iiiii in aaasa yma nw f n x q II f I3 p l L31amp1r 39 113 L Elia it n 0Wj h R k q 0 k L hLamtr i i fez iizag wk zag1y 3 gm was l ttfiitlg h rti hy s f Saaww a am i I had ggis w 3 and 5 W 31611 mi ta itf ar FW Wiiaga 0 g PPU eib7grea him j g 0 f g 0 j h j P f j h p I 39riI1 1si39h f masfgm pG TU Mf bi R 1h P 3 3m igtsi 35i isad sltzad wi 31 3133 the 39fi39ZHi g E21g aslteE Eiaa I3 i 391 i39z8 i39ff mat xes tsasztzsbazi am1m t5 ma sthszz sing magi be nxsse ta aTtisi 3 ft33 quot Ei39 iai fts aggaxixnst sf atet am am am 0 fitig miaama fizz ga3 asmaraim t z39 a Eis9 3quot39 giasmg 5ptasn July 1997 Question 5 Analysis DECEDENTS ESTATESiIK Questioa 391 Analysis Legal Prohlms 1 Do the funds on deposit at First Bank in the name of Decedentin trust for GrandchiId pass outside of the probate estate to Grandchild or are they assets of Decodent s estate subject to the claims of Decedeafs creditors 2 Can Decedenfs creditors reach the money ia the joint ban account on the theory that the joint bank account was opened merely as a convenience to Decwent i 39 3 Can Decedenfs creditors reach the diamond ring on the theory that Decadent i did not e 39ective1y give itto Friend while Decadent was alive 39 DISCUSSION P Deoedent s creditors cg reach First Bank mt acooun Q sets if the assets in her probate 392030 estate are 39pgft391gignt to pay me cl39 5 against her gtate A person may deposit iiinds ia a bank in the forth A in treat for Bi and create a socalled tentative ttust L account bank account tmst or Totten trust so named for the famous New York case that upheld the ae t count against a chalienge that it violated the policies underlying the statute of wills See 1xrequotI c 179 N t 12 7 1 NE 748 1964 These accounts are also recognized by statutes in many states See eg Unit ProhCode 6 2018 6203 i p L L L L The deposits is the sole owner of the account throughout his lifetime absent elm and convincing evidenceof a different intent Uaif Prob Code 621 10 Upon the owaefs death the remaining some on deposit belong to the designated bene ciary Unif Prob Code 62l2b However courts and statutes provide that if the depositor s probate estate is insufficient to pay claims against the estate than the money on deposit in the trust account is available for the payment of claims See eg Restatement of Trusts 53d Unit Prob Code 621 5a The tight of creditors to reach the trust assets is justi ed on the gonad that up until the moment of Dccedent s death Decadent had the uotestticted right to the useand enjoyment of the mds in the same manner as Deoedent had with respect to othexgassets that would have been included in the Decedenfs probate estate July 1997 Question 5 Analysis Under the Uniform Probate Code thecreditors ofDecedent s estate can reagh the money in 3040 the ioint account if the other assets of the estate are insnf cient to satisfv their clainn At Qrnmon law the crmitors cannot reach the joint account assets unless the joint account is i opened for the depositofs conveniengg and no survivorship feature was intend Under the Uniform Probate Code ifa decedent s probate estate is insn icient to pay the claims ofcredi torst11ecrniitors in aj sintaceonn1isseperiottotherighIscft11asnrsisingjoint tenant to the extent that the decedent deposited money into the joint bank account Unif Prob Code 6215a Absent such a statute the surviving joint tenant of a joint bank account A and B as joint tenants with right of survivorship ordinarily is entitled to the ntoney in the account at the death of the first joint tenant and the deceased depositor s creditors have no claim to the money Insome states the survivorship feature is conclusive See In re nite of Gainer 466 So2d 2055 Fla 1985 In others the survivorship feature can be avoided if fraud duress undue in uence or mental39incapacity is shown Seednnot 43 ALR3d 971 1972 In these states and under the facts Son is entitled totheaccount balance to the exclusion ofDecedent s credi tors quot 39 39 39 39 Some courts haveheid that no right of survivorship is created if the evidence shows thatthe person who created the joint bankaccount did not intend the other persons named on the account to have a right of sur vivorship The intent of the person creating the joint bank account is not selfevident from the form ofregis tration A and B as joint tenants with right of survivorshipquot The depositor may have intended that during their joint lives either was empowered to withdraw funds from the account with the survivor being entitled to the balancequot This might be called a true joint tenancy account Alternatively the depositor may have in tended only that the survivor be entitled to the funds in the account at the depositor s death but that the non depositor have no right of withdrawal during the depositor s lifetime This would be a payondeath ac count Then again the depositor may have intended that the nondepositor have the right to withdraw funds during thedepositor s lifetime but not be entitled to the funds on deposit at the deposito s death This intent 39 suggests the account was intended to be a more agency account See generally Jesse39Iulteminier 3 Stanley Johanson Wifls Trusts ondEsroz es 293 4th ed 1 990 If an agency account was intended tltena court could hold that the survivor is not entitled to the funds in the account at the depositor s death Eranklin v ggga Na 140 Ii1App3d 533 488 NE2d 2 1 l7 1986 Only onquot this construction of the deposi tdr sintent would the funds in the account be an asset of the decedent s estate subject to the claims of creditors 39 L L quot 39 quot s l A Under the facts of the problezn it appears that at minimum the account was opened for Decedent s con venience and as a device to enable Son to reach the deposited funds What is unclear however is whether Decadent intended Son to takequot the funds remaining in the account at Dccedent s death as the suraivorquot It might be inferred that Decadent had no such intent based on the fact that the bankof cer suggested the ac count its a vehicle to enahie Decedent s child to obtain access to IJecedei1t s money in case of Decedent s need 011 the other hand it is quotlikely that Decadent would vsiant Son to have these funds as a reward for tak ing care of Decadent inoid age perhaps even as aforrn of compensation for Son s time and expense in tak ing care of Decadent and assuring that Decadent did not have to go to a norsingshome Since there areno direct statements orn Decadent that the snrvivorship feature was not intended it is unlikely under either a 39 preponderance of the evidence standard or a clear and convincing standard that Decedent39s creditors will be able to defeat the snrvivorship feature t i 39 39 s July 1997 Question 5 Analysis Bojm39Inee The gift of the ring to Friend is valid because Qecedent int nded to make the Q3 thgeiwag 4555 an amropriate delivery grader the circumstances and Friend is presumed to have agted the gift Therefore the creditog of Decedent s estate cmgot reach the ring Whether the ring is subject to the claims against the estate depends on whether it was in Decedenfs estate when she died or had been ves away by Decadent before her death An inter vivos gift requires intent deliv cry and acceptance Acceptance is generaily presumed particularly when the subject matter of the gift is some thing ofvaluc Thus in most cases the issue is whether the donor intended to vest the donee with an interest in property immediately or only at some time in the future If the latter is true the donor has not made a gift lfthe formcris true the gift was completed only if the delivery was appropriate under the facts and circurnstancw Cases in which the transfer of physical possession of the subject matter of the giftis deferred to some time in the future present a difiicult case The deferral of the transfer until the future might suggest the ab sence of an intent to make an immediate gift or it might suggest an intent to make an immediate gft of a fu ture interest in the property because the donor wants to retain possession of the item for life The common i law recognizes both present and future interests in property as distinct property interests Thus there is no a reason why one cannot make an immediate gi ofa future interest In Gruen v Gram 68 NY2d 48 505 NYS2d 849 496NE2d 869 1986 the court held that a donor had made a gift tohis son ofa future interest in a painting where the donor wished to defer transferring possession of the painting to his son so that the do nor could retain possession of the painting for the rest of his life See disc Innes v Potter 130 Minn 320 153 i nw 604 1915 i r The facts particularly the language in the signed typed letter which Decadent sent to Friend indicate that Decadent intended to make a present gi of either a present or a future interest in the dog If the court finds that Decadent intended to make a present gift to Friend the next question is whether delivery was ap 39 propriate under the circumstances a 39 If a court views the ring itself as the subject of the gift delivery of the latter would likely be considered I appropriate under the circumstances since the donee was not physically present for the donor to hand the ring to at the time the donor intended to make the gift Courts have generally recogiized that constructive or 1 symbolic ddlivery of a gift is appropriate if the subject matter of the gift cannot be physically delivered to the39donee at the time the donor wishes to complete the gift Seealso In re Cohg 187 App Div 392 176 NY S 225 1929 g t i If the subject matter of the gift is a future interest in a ring rather than the ring itself then the gift can only be evidenced by a constructive or symbolic delivery since the subject matter of the gift has no physical shape In such case the best delivery would be a writing that is signed and delivered to the donee as was done here See g en v Green supra I i Under either interpretation Decadent made a present gift to Friend of a xture interest in the ring and Decedcntquots creditors have no claim to it On the other hand if the court nds that delivery was insuf cient the ring would be an asset of Decedent39s estate subject to the creditorsquot claims 39 Iecedent s creditors might argue that this was a not an inter vivos gift but a gi cause mortis The latter is a gift made under an immediate apprehension of death usually from a iCI1u I1pBI il which is revocable if the donordoes not die Like an inter vivos gift a gift cause mortis must be evidenced by intent delivery and acceptance Some courts appear to require a greater degree of proof of intentdelivery and acceptance in the case ofa cause mortis gift because of a concern that such gifts are inconsistent with policies underlying stat utes of will in that they are often unwitncssed transfers See eg Foster v Reiss 18 NJ 41 112 A2d 553 1955 On the facts it is not clear whether the decedent wrote the letter under the immediate apprehension of death Thus it is unclear whether the giii would be characterized as a gift cause morris I f the court treated this gift as a gift caasa mortis but regarded it with suspicion it might nd that delivery was insuf cient In this case the ring would be an asset of Decedenfs estate subject to the creditors claims S5 3939quotmr upvumsraau February 1996 Question 2 Question 2 Wife and Husband were married in I 988 They had two children Anna and Barbara born in 1989 and 1991 In 1992 Wife validly executed a will which provided I leave Husband 100000 and hope and expect that he will continue to provide for my mother Mattie as lhave done for many years I leave the rest ofmy estate to Husband I name Husband executor of l I my estate I linteationeliydislinhsrit anyasrs0a sot Iialasd in this Will PJ 5 In February 1995 Wife filed for divorce from Husband In August 1995 the trial court entered a decree that granted Wife a divorce divided the property of Wife and Husband and ordered Husband to pay child sup port The economic terms of the decree became effective irnrnediately but the portion of the decree that ac tually ended the marriage between Wife and Husband was not to become final until November 1995 Wife was killed in an automobile accident in September 1995 two months before the divorce decree was to become nal She was survived by Husband her children Anna and Barbara and her mother Mattie For ten years before her death Wife had sent Mattie who was disabled 40 per month Under the law of intestate succession in this jurisdiction a deceden s surviving spouse is entitled to one half of the estate if the decedent is survived by children decedenfs children are entitled to onehalf of the estate if there is a surviving spouse and to the entire estate if there is no surviving spouse 1 Is Husband barred from taking under Wife s will Explain 2 Assuming Husband is not barred from taking under Wife s will to wborn should Wife s estate be distrib uted Explain I ImpHt quot nww February 1996 Question 2 Analysis DECEDENT9 ESTATES ILF IILB Question 2 Analysis I If a court enters a divorce decree dividing the property of spouses and one spouse dies before the divorce becomes final is the surviving spouse entitled to take under the decedent39s will Legal Problems 2 Under what circumstances will an inde nite request to a devisee to take care of another person suffice to create a trust for the benefit of that person 3 Are children entitled to the rights of pretermitted heirs if they are born before a will is executed andfor the will expresses an intent to disinherit anyone not named in the will DISCUSSION Note Husbands interest in Wifes estate depends upon whether he is barred from taking under the will or by intestacy as a result of the divorce and property settlement Mattias interest depends on whether a trust was created for her bene t Wife s children39s interest depends on whether they are preterrnitted heirs P 39t e Ieoi n ocs 1 i C I h ee d you7 30410 ividi t 39 393 an it o 139 es of o 1 r S 3939 vree o F 3 iv39 n e 391 ti o e u 1 W31 is T g 1 39 3 At connnon law divorce alone was not sufficient to revoke avvill or even the provisions in a will for a di vorced spouse In states following the corornon law role Husband is entitled to all of the bene ts provided hire by the will regardless of whether his divorce from Wife was final A growing number of states if not most as well as Uniform Probate Code 2 S04 now provide that divorce revokes any provision in a press isting will for a divorced spouse Typically these statutes only apply ifthe divorce is nal Additionally un der UPC 2 804 if one of the spouses dies before the divorce becomes final but the divorce decree divides the property of the spouses provisions in the will for the surviving spouse are also revoked However the UPC section on economic provisions has not been widely adopted and most states have not passed on the is sue In states which do not have such a statute the same result might be reached if the coat vvereto conclude that the economic provisions in the divorcedecree if satisfied were intended tonbe in lieu of the bene ts passing under the will to the former spouse Under UPC 2 804 divorce also revokes the desigtation of a former spouse as a duciary Although not specifically called for by the first question if the provisions for Husband are revoked all testamentary bene ts for Husband pass to Wife s heirs as partial intestate property No residuary legatee other than Husband is named in the will Wife39s heirs are her children because Husband had no right to his intestate share because of the divorce and property settlernent See UPC 2 802a amp b3 If the 100080 beqoest to Husband for the benefit of Mattie is a trust for Mattie see Point Two the children would not take 2 February 1996 Question 2 Analysis this bequest I on the other hand the 100000 bequest is a bequest to Husband with only precatory lan guage that he use the funds for Mattie it also passes to Wife s heirs assuming that Husband is not entitled to take under Wifels will 0 EointTwo ether be tt no rso acconi a ie la ua easkin thatthe r j gfIi 39p to care for another greates a trust depends on the language used to whom the bequest is made and the prior relationship of the testator and the other parties A settlor must manifest the intention to create a trust to establish a valid express trust In her will Wife said that she hopes and requests that Husband will use some of her estate to provide for her mother Mattie Language such as desire request and hope has given rise to considerable litigation See A Scott Trusts 252 3d ed 1967 The use of such language raises doubt as to whether the testator intends to create a trust with a legal duty upon the trustee or merely a moral obligation unenforceable at law Mattias suc cess in arguing for a trust depends on which of two views regarding the legal effect of such language the court follows If the court follows the early English view see Bogert Trusts and Trustees 48 Ed ed 1951 it will treat Wife39s words as creating enforceable trust duties and hold that she established a valid trust However most states following the approach of later English courts see Bogart Trusts and Trustees 48 2d ed I95 l D would hold that Wife s words are ambiguous and create a trust only if her intent to im pose a legal duty on Husband is shown by extrinsic evidence Factors that in uence a court in construing such language include clear and specific directions to one al ready a duciary a natural result and the relationship and circumstances of the parties Bogart Trusts and Trustees supra 48 Mattie can rely on several factors to support her claim that Wife intended to create a trust for her benefit including the fact that Wife39s testarnentary suggestion is made to a fiduciary her hus band whom she appointed executor the nature of the relationship between Wife and Mattie daughter and mother Wife39s history of supporting her mother and the fact that there are two separate provisions provid ing bene ts to Husband rather than only one Point Three In most jurisdictions children who are born befgre a will is executed are not entitled to take a 20 30 in rat e hild hoft tstt esttl atinw chum at e n th s LL ci sta te e al 11 i 39nher3939na o l h ill an ab E I to d it hti l 3 1 h il Under a pretennitted or ornitted heir statute Anna and Barbara may have the right to take their intestate shares from Wife39s estate The first issue is whether children born before a will is executed are covered by the jurisdictions statute UPC 2 302 does not protect children born before the will is executed Under such a statute Anna and Barbara have no claim as preterinitted heirs althoughif Husband is barred from taking an der Wife39s will they would take all property that otherwise would have passed to him because they would be her sole heirs under the statute set forth in the facts i 39 it y In states where children who are alive when the will is executed are entitled to a share under the preter rnitted heir statute the next issue is whether general language of disinheritance such as that used in Wife s will is sufficient to indicate that the testator intentionally emitted a child This issue has been tnuch litigated and the case law is divided See generally William M McGovern Jr Sheldon F Kurtz and Jan Ellen Rein 36 1988 General language of disinheritance is more likely to be given effect where the bulk of the testator s estate is bequeathed to the other parent of the preterniitted children since in all likelihood the surviving parent will use the property for the benefit of the children or bequeath it to thorn 22 February 1996 Question 2 Analysis when that parent dies Otherwise such language is insufficient tc bar the children fram claiming as preter mitted heirs July 1996 Question 3 Question 3 Following extensive conversations and negotiations Husband and Wife agreed to the terms of reciprocal wills under which each left his or her entire estate to the survivor and the survivor left the survivo s entire es tate one haIf to Husbands family and onehalf to Wife39s family Each of their wilis dated September 10 l994 was properly executed Each wit contained the following piause This will and the will of my spouse each were executed after extensive conversations and negotiations essay to 1995 Husband what tatiasaaogataphtsmu that tea Notwithstanding the provisions of my will dated September 10 1994 I leave 50900 to Wife my stamp collection which is located in my safe deposit box to those friends ofmiae listed on a sheet of paper that is attached to the cover of the collection and the balance of my estate to Sister Husband placed the May instrument in a desk drawer in his home office Wife inadvertently discovered the instrument and confronted Husband about it In the course of a heated argument Husband told Wife he had changed his will because he did not like her family One noooth later Husband had a fatal heart attack Husbands estateconsists only of400000 in cash and the stamp collection Wife SiSt6i 393I1d Friend whose name is the only name that appears on a sheet of paper attached to the cover ofHosband s stamp collection in his safe deposit box dispute how the estate should be distributed Under state law holographic wills are valid How shonid Husbands estate be distributed Explain July 1996 Question 3 Analysis DECEDENTS ESTATES ILA ILD ILH HLA Question 3 Analysis 1 Car theseparate September wills of Husbandeand Wife beeenstrued as contrad teal wills 2 If the September wills can be construed as contractual were they revoked by Husbands execution of the May holographic will which was discovered by Wife 3 If the May holographic will revokes the September wit is the bequest to Friend of the stamp collection valid under the doctrine ofineorporation by reference 4 If the May holographic will revokes the September will is Wife entitled to ciairn a forced share of Husbands estate DISCUSSION Notes Wife is entitled to Husband39s entire estate if the September wills were contractual and had not been revoked On the other hand if Hnsbandis September will was properly revoked Wife could claim a forced share ofHusbaod39s estate and Sister could ciairn whatever portion of the estate neither Wife nor Friend was entitled to claim Friend cannot claim whatever portion of the estate neither Wife nor Friend was entitled to claim In this problem Husband and Wife executed reciprocal wills being separate wills with terms that mirror each other They did not execute a joint will which is one document signed by two testators Reciprocal or joint wills may also be contractual or tnatual if they were executed pursuant to an agreement that they should not be revoked Point One 1 he September wills probably cannot be construed as contractual whether or not the 39orisdic 3545 ton ermit roo he co t tuala re t X 39 sic evi ence or re air t vi den ft e cot al intent ion 1 t ewill Contractual sometimes called nnutua wills havebeen upheld if the evidence is clear and convincing that a contractual will was intended and the terms of the contract are readily ascertainable See gerierafly Es rote offfester 477 Pa 243 333 A2d 914 1978 Juno 1 Estate ofGiIliam 759 SW2d 654 Tenn 1988 The burden of proof is on the party ailegirig that a contractual will exists See John Ritchie Neill Aiford Richard Effland 82 Joel Dobris Decedem s Esto es and Trusts 870 18th ed 1995 i Concern that a will might be falsely alleged to be contractual based upon extrinsic evidence introduced after a testator39s death when testator is no longer in a position to respond has led many legislatures to adopt rules such as Uniform Probate Code 2514 A contract to make a witl or devise or not to revoke a will or devisernay be established only by i provisions of a will stating rnaterial provisions of the contract ii an express reference in a will to a 45 July 1996 Question 3 Analysis contract and extrinsic evidence proving the terms of the contract or iii a writing signed by the decedent evidencing the contract The execution of rnutual wills does not create a presumption of a contract not to revoke the will or wills The facts state that Husband and Wife both negotiated and agreed to the terms of their wills and that their wills contained the following clause This will and the will of my spouse each were executed after exten sive conversations and negotiations This language does not expressly state that the parties entered into a contract Rathertheltangna39ge I13 tI tti3Iquot39SfdiI Squotfilo39lquotlTl139e tBrt11 S CtflZh l1quot39St3pa l 339f tllZ3t339ilquotTBClpI390C3l wi Ills were exe cuted after extensive conversations and negotiationsquot Arguably this language is insufficient to establish that such conversations and negotiations led to the formation of a contract Under UPC 2514 for exam ple the words in the will appear to fail to establish the necessary intent since they do not refer to a contract It can he argued that there is sufficient extrinsic evidence to support the conclusion that the parties intended to execute contractual wills However no extrinsic evidence appears with respect to the parties understand ing regarding the revocability of their contract during the joint lives of the testators and the wills are silent on that point Thus the reqairenients of the statute requiring proof of a contract not to revoke the will are not met Since the burden of proof is open the party alleging the existence of a contract Wife the preceding ar guments suggest that Wife cannot rneet that burden If a court were to conclude that the parties had entered into a contractual will the question would arise whether the contract was revocable See Point Two Point Two l0 20 A party to a contractual will may revoke it if notice of an intent to revoke is given to the other party Revocation is permitted with notice on the theory that once notice is given there can be no detrirnental reli ance since the party to whom notice has been given can change his or her will When the testator who desires to change the contractual will survives the contract is deemed revoked only if the first to die had been noti ed prior to death of the other39s intent to revoke the contract On theother hand when the testator who dc sires to change the contractual will is the first to die notice to the other testator is provided by the terms of the will of the first testator to die which presumably reflects a disposition inconsistent with the terms of the con tract See generally Boyle v Sckmite 602 So2d 665 Fl Dist Ct 1994 Daitrne v Duhrne 260 NW2d 415 Iowa 1977 Monsonr v Rabil 177 SE2d 849 N C 1970 The UPC has no provision dealing with the revocation of a contractual will Where the first testator to die is the one who revoked the will the other testator s remedy only includes the right to change his or her will He or she is no longer bound by the contract The surviving testator is not entitled to damages nor to impose a constructive trust on the successors to the estate of the first testator to die If Husband and Wife 6Cl1393Ci contractual wills the issue arises whether the notice of revocation was sutlicient Wife received notice by a variety of means It appears that Wife initially received notice when she inadvertently found the will in her husbands horne oftquot cc rather than by a direct coromunication from Has hand It is also clear from the conversation she had with him prior to his death that he did intend to revoke his 1994 will and that his intent to do so was orally coinrnonicated to her Fnrtherrnore she had at least one month before he died to change her will Lastly of course Wife received notice of Hasbandfs intent to re voke from the terms of the holographic will that was prohated Thus even if the 1994 wills were construed as initially contractual the contract was revoked by Husbands revocation of his 1994 will and his communi cation of an intent to revoke that will to Wife 46 July 1996 Question 3 Analysis if the execution of the holographic will and Wife39s knowledge thereof were not deemed sufficient to re voke the contractual will if the September will were so construed Wife would be entitled to Husbands en tire estate Point Three Ifthe holographic will revokes the September will the bequest to Friend ofthe stamp collec 1233 tion is likely invalid and cannot be saved by the doctrine of incorporation by reference since the evidence is weak that the referred to sheet was in existence when the will as Signed Qn the otherhand ift e39uri dictio a enacteda quotl1 t tatute the rftto 1 bev lid If Husband39s 1994 will was not contractual or if it was but under state law contractual wills are revoca ble and that will was properly revoked the issue arises concerning the dispositive effect of the valid holo graphic will This document is a later executed will and not a codicil because it purports to dispose of Husband39s entire estate The facts state this was a valid holographic will and that holographs are valid in the state Thus discussion of validity is non gerrnane As a later valid executed will it revokes prior wills un der all revocation statutes See eg UPC 2507b Under the doctrine of incorporation by reference a will may incorporate into the will another document that is extrinsic to the will The dispositive terms in that extrinsic document may be given testamentary of feet even if the extrinsic document was not executed in accordance with the formalities required by the stat ute of wills In order for the doctrine to apply the extrinsic document must have been clearly identi ed in the will and roast have been in existence when the will was signed See generally Simon v Groyson 15 Cal2d 531 102 P2d 1081 1940 John Ritchie Neill Alford Richard liif and amp Joel Debris Dacedenrs Esrotes and T rests 8th ed 1995 See also Uniforrn Probate Code 2 5 l 0 providing A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and de scribes the writing sufficiently to permit its identification Here it is unclear whether the sheet of paper attached to the stamp collection was in existence when the will was signed It seems likely that it was as only one month passed between the time the holographic will was signed and the time testator died and the paper was in existence when testator died However it is likely that the burden of proof on this issue will be on Friend because Friend is seeking to give effect to a writing that was not executed with the formality of a will Because the facts are sufficiently unclear Friend may be unable to meet that burden of proof Most damaging to Friend39s case is the fact that the holographic will refers to those friends listed on a sheet of paper whereas the actual sheet of paper only has F riend39s natneon it The conflict between the refw crease in the holographic will and the actual sheet of paper suggests that the actual sheet was placed on the stamp collection subsequent to the making of the holographic will i Many states have enacted statutes permitting the disposition of tangibles by the use of a list whether or not in existence when the will is signed In such jurisdictions the gift to Friend if the holographic will is of fective would be valid Eoint Four if the holographic will revokes the eptengber will Wife likely is entitled tg a forced share of 515 B Husbands estate Most states create a statutory forced share for the benefit of a surviving spouse The forced share is a re flection of a public policy that it is to some extent inappropriate to disinherit a spouse who contributed to ward the accurnulation of the deceased spouse39s wealth during the marriage The size of the share may vary among the states but a typical share is l3 See generally Uniforrn Probate Code Part 2 Spouses elective 47 July 1996 Question 3 Analysis share The precise ealeuletien of the elective share can vary depending on the elective share laws of the ju risdiction It is typieai however that the spouse s eieetive share will be charged first against the residuary es tate and them against the speci c bequest passing to Friezzd 43
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