Wills

omitted after-born child has right to share of estate unless: (1) it appears from the will that admission is intentional (2) Testator provided for omitted child (i.e.  by substitute)

Typically intestate share.  UPC - If a gift is made to an existing child, gift is divided among omissions

• Can show the omission was not a mistake if it appears from the will or other evidence: (1) Will was made in contemplation of marrigage (2) Will explicitly stated intent to be effective not withstanding any subsequent marriage (3) Spouse provided for in transfer outside the will
• HOWEVER, if property left entirely to descendents, will not assumed a mistake

• Intent of donor controls - R10.1:  The controlling consideration in
• determining the meaning of a donative document is the donor’s intention.  The donor’s intention is given effect
• to the maximum extent allowed by law

Intent must be reliably determined

• Majority - Upheld, but look at the motive behind the condition.
• (Concern about wellbeing and providing
• support?)
• Restatement 3 – Condition putting a partial restraint
• is too intrusive or personal and should probably be invalid 

• Permitted as long as it is reasonable (assessed
• at the time of death) - Reasonable means the permitted marriage is likely to occur.  Ct. upheld a
• condition that son must marry a Jewish girls, with two Jewish parents, within seven years of father’s death because it was likely that the marriage could
• occur and the intent of the deceased was to strengthen the Jewish faith – which was evidenced by the fact that if the son did not marry, the money should go to Israel

Generally

• Majority - Atty who drafts a will owes duty of reasonable care to beneficiaries of the
• will by theory of contract 

• Minority (including OH) – no duty to intended beneficiary – desire to avoid divided loyalties
•       
• Restatement – extrinsic evidence admissible to show intent of testator - If you can show intent by clear
• and convincing evidence, then you can reform the will

• where a client has contracted with an atty to draft a will and the client has identified to whom he wishes his estate
• to pass, that identified beneficiary may enforce the terms of the contract as a third-party beneficiary.
• - Because the foreseeability of injury is
• great, this is a permitted exception to the privity rule
• - Intended beneficiary can state a cause of
• action by pleading sufficient facts to establish that attorney negligently failed to effectuate testor’s wishes

Fraud - if the atty’s services have been provided in connection with perpetrating a fraud, then it is okay to breach the duty of confidentiality to remedy the fraud

• Conflict of interest - A v. B:  Atty representing husband and wife in estate planning.  Same firm represents a woman suing husband for paternity.  Clerical error caused firm to miss the conflict.  In couple’s will, everything goes to children.  Would this include
• illegitimate child?  Atty could break duty of confidentiality to tell wife about the child.

If two people die within 120 hours of each other, each is determined to have predeceased the other

• husband and wife both took cyanide laced Tylenol.  Husband died on the way to hospital.  Wife survived on life support for a day or so longer. Trial court found no sufficient evidence that wife was brain dead upon arrival with husband.  Appellate court affirmed. 
• - if there is no sufficient evidence of the order of death, you treat it as each spouse died first
• - Question arises over what constitutes “sufficient evidence” of the order of deaths
• - Burden of showing sufficient evidence rests on the party who claims survivorship

If they die within 120 hours of each other – ½ passes to each persons heirs or devisees, effectively it is converting the joint tenancy to a tenancy in common

• Common law: any lifetime gift by the decedent was presumed to be an advancement of the child’s intestate share
•    
• UPC: Something given during decedent’s lifetime is an advancement only if: (1) Decedent declared in an contemporaneous writing or heir acknowledged in a writing that it was an advancement or (2) Either such writing states that the gift is to be taken into account in the distribution of property
•      
• Some states:  Presumptively, the gift is not an
• advancement unless it is shown to have been intended as such

• Estate is just divided among the child who had not received the gift.  Receiver of gift does not have to give
• money back

• Treated as though disclaimer predeceased
• UPC - cannot disclaim in a way that would manipulate distribution

Generally - a creditor cannot reach disclaimer's share.  EXCEPTION - IRS can file a tax lien on property or rights to property

Drye disclaimed his interest in his mother's estate so it would pass to his daughter in hopes to avoid IRS liens.  Ct held that Drue held the property or right to property when he disclaimed it, so it is subject to IRS tax liens

5 year look back period - if you make gift of assets more than 5 years before eligibility claim, it is okay

Must know and understand in a general way: (1) the nature and extent of his or property; (2) natural objects of bounty; (3) Disposition that he or she is making; (4) Be capable of relating these elements to one another

• Majority - if proponent can show (1) due execution and (2) decedent is dead, contesting party has burden of persuasion to show lack of capacity
• Minority - Once presumption of capacity is rebutted, burden on preponent to prove capacity by preponderance of the evidence

(following the minority approach of burden of proof):  Two will changes in a short period of time combined with the existence of alzheimer’s was enough evidence to rebut the presumption of capacity.  Testator could not further prove capacity by the preponderance of the evidence. 

(following the majority approach of burden of proof):  Eccentric woman devised property to 17 beneficiaries.  The court held there was no evidence that Greer lacked testamentary capacity

Permitted in minority of jurisdictions - The writer of a will can institute an adversary proceeding during life to seek a determinative declaratory judgment that there is capacity, no undue influence, and the formalitites were complied with

(1) Persistent belief; (2) with no existence in fact; (3) that materially effected the will

created a holographic will before killing himself after killing someone else in a hit and run accident.  Court held no insane delusion that materially effected the will

(1) Donor susceptible; (2) Alleged wrongdoer had opportunity to assert; (3) Alleged wrongdoer had disposition to assert; (4) result appeared to be an effect of undue influence

Contestor brings facts to raise presumption. Then shifts to proponent to rebut presumption by clear and convincing evidence 

• Independent counsel was not
• enough to rebut the presumption of undue influence when an older women willed
• to an atty 15 years her junior. 
• The court held that the atty was just a scrivener, and did not actually
• offer any advise or counsel. 

• Friend and neighbor was
• given a substantial portion in new will. 
• Neighbor was unable to rebut presumption of undue influence, so the will
• could not stand. 

(1) establish a confidential relationship AND (2) One or more suscipious circumstances

(1) Fiduciary; (2) Reliant; (3) Dominant-subservient

(1) Weakened donor; (2) donee participated in prep or procurement of will; (3) ind. atty advise; (4) prep in secrecy or haste; (5) Donor's attitute towards others changed; (6) Discrepancy between new and former wills; (7) Continuity in purpose as to former wills on intent; (8) reasonable person thinks disposition is unnatural, unjust, or unfair

• Ct. (probably wrongly) held
• undue influence in a case of a man distancing himself from his family and
• leaving everything to a man with whom he had a homosexual relationship

Will is invalidated

• UPC/Majority - will not enforce clause if there was probable cause to contest 
• Minority/OH - No contest clause enforced

• UPC and Many courts:  presumption of undue influence arises
• when an atty drafter receives a legacy, except when related to testator
•  
• - Atty can rebut presumption with clear and
• convincing evidence

(1) testator deceived by deliberate misrepresentation; (2) performs testamentary act which he would not have done had the representation not been made

In the inducement; In the execution

• caregiver told testator
• that her niece was going to put her in a nursing home and was misspending her
• money, neither of which was true. 

• When a wrongdoer threatened to perform or
• did perform a wrongful act that coerced the donor into making a donative
• transfer that the donor would not have otherwise made

• if allegations could prove unjust enrichment by duress,
• father divine would be given the award in a constructive trust

(1) Existence of an expectancy; (2) Intentional wrongful interference with the expectancy through a tortious act; (3) Causation; (4) Damages

(1) separate than probate proceedings; (2) SOL runs from time P should or should have discovered the fraud; (3) can recover punitive damages; (4) normallty does not fall under plain vanilla no-contest clause

• Caregiver brings testator
• to her home to care for her. 
• Testator creates new will naming caregiver as beneficiary.  After testator dies, caregiver waits
• until the end of period left to contest a will to notify her.  

(1) ritual function; (2) evidentiary function; (3) Protective function; (4) Channeling function

(1) Attestation and signature by two witnesses AND (2) Acknowledged by testator before a notary public

• within a reasonable time after acknowledgment 
• Doesn't have have to be in each others' presence

Strict compliance

• Testator did not
• acknowledge his signature in the presence of both the witnesses.  Ct refused to probate will.

• Testator was in a
• wheelchair and did not sign in the presence of the witnesses.  Ct. held will not valid

(1) Line of sight test; (2) Conscious present test (Majority)

• testator does not actually
• have to see the witnesses sign but must be able to see them were the testator
• to look

• the witness is in the
• presence of the testator if the testator, through sight, hearing, or general
• consciousness of events, comprehends that the witness is in the act of signing

to provide evidence of finality and genuiness

what the testator intended to validate will as her signature

in general - the testator must sign first.  In most jurisdictions and under the UPC, it is okay if it is part of a single, continuous transaction

If provision was there after signature - considered a codicil and requires the formalities of a will.  If provision was there before the signature - Majority: entire will would be invalid; Minority: only the provision would be invalid

a reasonably permanent record

(1) Purging statutes - Majority: Purge the excess gift; Minority - purge the entire devise; (2) UPC/Minority: Will valid/ interested party does not forfeit benefit; (3) CA - interested party raises rebuttable presumption of undue influence; (4) Estate v. Morea - Gift valid because no benefit - received less under will than intestacy

• Son and two other witnesses
• signed as witnesses.  Son received
• less under the will than he would have under intestacy statutes.  Under NY two, beneficiary gift is void
• unless there are two other witnesses who are not beneficiaries.  Ct held the gift valid.  Son’s gift was less than his intestacy
• share, so he was not receiving a benefit.

Traditional approach : deny unless strict compliance;  Modern approach: Admit wills and adhere to intent

• Husband and wife signed
• each others’ wills.  The court
• followed strict compliance and would not admit the wills to probate. 

• Two different modes of correcting
• -  Probate the will that the decedent intended to sign
• -  Probate - the will the decedent actually signed

Clearn and convincing evidence that decedent complied with the formalities

• Signed a self-proving
• affidavit, but it referred to the execution in the past tense.  The court upheld because of substantial
• compliance with formalities

A document or writing is treated as if it had been executed in compliance with the formalities if the proponent can show by clear and convincing evidence that decedent intended the writing to be: (1) Will; (2) partial or complete revocation of the will; (3) an additional to or alterative of the will; (4) partial or complete revival of a formally revoked will or a formally revoked portion of the will 

husband and wife signed a joint will.  They decided to make changes and wrote them on the draft in lawyer’s office.  Lawyer was supposed to print out a formal will, but never did.  Lawyer informed husband that will would be valid if he died before changes were made.  Wife tore up old will.  Husband died.  Changes never made.  Court held will valid bc the court has the right to dispense of compliance with the formalities if there is clear and convincing evidence of intent.

Ct would not probate a will that was notarized, but not attested

Filled out a preprinted will form.  Intended to rewrite it more neatly on another pre-printed will form.  Signed the blank one.  Died before he ever rewrote it.  The words that were testamentary in nature were preprinted – not in testator’s handwriting. Ct. upheld the will by incorporating both documents. (Some states hold opposite)

Must be in testator's handwriting and signed by testator

• In almost all states - anywhere - but if not at the time, it may raise doubt to intent
• OH  - signature must be at the end

• Current UPC - (1) material portions must be in testator's handwriting; (2) Extrinsic evidence is allowed
• Old UPC:  material provisions had to be in testator's handwriting
• 1st statutes - must be entirely in handwriting of testator

Revocation if expressly stated. Modern view: even without express statement, second will presumptively revokes if inconsistant

reverts back to first one because it was never revoked

Modern approach - second one stands - rest of the estate is offered for intestacy Traditional common law approach - codicil ties into will, so revocation of the will presumptively revokes all codicils

(1) The act; (2) The intent to revoke; (3) Testator performing the act (or - UPC - proxy at their direction AND in their conscious presence) 

UPC - must be on the will, but does not have to touch the words of the will.  Common Law - Must touch words of will

Ripped up will, but saved it.  Void was written on the back.  The court held the will was not properly revoked.  Must touch the words of the will

Presumed destroyed with an intent to revoke if (1) it was in the possession of the testator and (2) it cannot be found.  Proponent has the burden of rebutted the presumption.

Wanted to revoke will.  Lawyer tore it up outside of the presence of testator, but mailed testator the pieces.  After death, will could not be found.  Ct. held there was a presumption that testator destroyed it to revoke and proponent could not rebut the presumption.

(1) UPC - allows and gives its logical effect; (2) Other - allows, but does not allow it to increase the gifts of others; (3) OH - cannot partially revoke by physical act

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

(1) Subsequent instrument is invalid; (2) the mistake is recited in the terms of the revoking instrument or it is established by clear and convincing evidence

Created an ineffectivecodicil.  Assume the testator would have rather reverted back to the original will rather than to die intestate.  Ct. held the original will to not have been revoked. 

(1) Minority - cannot be revival unless reexecuted with the formalities; (2) English common law (Minority) - Will 1 was never revoked unless will 2 remains in effect until death; (3) Maj/UPC - Will 1 is revived if testator so intends - shown by (a) surrounding circumstances (b) contemporaneous or subsequent oral declarations

Had a will.  Made a second.  Revoked the second. Testimony that she wanted the first to be valid again.  Ct. used DRR – that she revoked the second will on the mistaken presumption that the first will would be valid again

• UPC - revokes both probate and nonprobate
• majority - revokes provision in the will
• minority  - revocation only if divorce is accompanied by a property settlement

also revokes them

• Majority - gives the spouse his intestate share, unless it appears from the will that the omission was intentional or the spouse is provided for in the will or by a will substitute with the intent that the transfer be in lieu of a testamentary provision
• Minority - revokes premarital will

• UPC/Majority - pretermitted child statutes
• Minority - marriaged followed by birth of child revokes prior will

a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification

(1) must be signed by testator (2) Must describe the items and devisees with reasonable certainty (3) May be prepared before or after the execution of a will (4) May be referred to as one in existence at the time of testator's death (5) May be altered by testator after preparation (6) May be a writing that has no significance apart from its effect on the dispositions made by the will

Decedent had a memorandum with a list of personal property to be distributed.  In a different notebook, she had a note that a painting was to go to her friend.  Ct. held that the memo was incorporated by reference.  When the codicils are added, the will is republished. Codicils were made after the notebook, so the notebook existed at the time of the signing of the will.

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will or before or after the testator’s death.  The execution or revocation of another individual’s will is such an event

All papers present at the time of execution, intended to be part of the will, are integrated into the will (Look at Initials, Numbered, Bound, Language logically follows to the next page)

A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s intent

• UPC - Established by: (1) provisions of a will stating material provisions of the K; (2) An express reference in the will or K to a K and extrinsic evidence proving the terms of the K; (3) writing signed by decedent evidencing K
• Minority  - writing not required - proof by clear and convincing evidence

Had mutual wills with children as residual beneficiaries if spouse predeceased.  Wife died.  Husband remarried.  Ct. held the children as third-party beneficiaries of mutual wills cannot defeat the wife’s interest under the pretermitted spouse statute.  FL said public policy required the wife to come first (Minority Rule). In Majority - the third party beneficiary would prevail

Either of no extrinsic evidence or no reformation

• Decedent left residue of
• her estate to her heirs to share equally. 
• Extrinsic evidence showed she meant that to be her cousins.  Her heir was her aunt.  The court stated the language was not
• ambiguous, so the aunt received the residue. 

Left to nursing home.  NV corp. sold the nursing home.  Money went to NV corp.

• Willed to wrong name of
• society in English.  Meant to give
• to society in Scotland Award went to London bc plain meaning.

(1) UPC - ct may reform, even if unambiguous to conform to testator’s intent if it is proved by clear and convincing evidence that the intent and terms of the instrument were effected by mistake of fact or law, either in expression or inducement. (2) Mere erroneous description. (3) Details of identification. (4) Personal usage. (5) Correct scrivener's error

Wills gave interest to property at 304 Harrison Ave.  Testator only owned property at 317 Harrison Ave.  Ct. said it cannot change the will, so it took its “fictional eraser” and deleted the erroneous language

Will gave gift to Robert J. Krause at 4708 North 46th.  But meant to go to Robert W. Krause at a different address.  Ct. allowed extrinsic evidence. 

Gift was to go to “Mrs. Moseley” wife of man who owned Moseley’s cigar store.  Her actual name was Mrs. Trimble.  Ct. gave the award to Mrs. Moseley.

Will devised to wife Dorothy, but they were not married at the time will was executed.  Statute did not expressly provide for the contingency of marriage kids argued that when they married, it revoked the will by the pretermitted spouse statute.  Ct. remanded for the wife to present clear and convincing evidence to correct the mistake. 

What is supposed to go to predeceased goes to his decendents by representation

(1) will does not provide a contingency; (2) devisee is related to T in a specified manner; (3) Has at least one descendent who survives T; (4) Will does not negate an anti-lapse statute

falls into residue

heirs of testator take by intestacy

the surviving members divide the gift

• UPC  - do not negate absent other evidence to contrary
• Majority - do express intent to the contrary

• Gift to step-daughter “if
• she survives me.”  Ct. held that
• survivorship language alone is not enough to express an intent to negate the
• anti-lapse statute 

• Descendents take by representation if:
• -Devisee must be grandparent or lineal
• descendent of grandparent
• -Issue that survives testator by 120 hours
• can take in place of deceased devisee

• Made gift of interest in property to 2 of
• her husband’s nephews.  Ct held it
• was not a class gift because there were others in the same degree of relationship
• not considered in the gift, the amount of the share was defined, she explicitly
• left a class gift properly in a different part of the will

• Identity (traditional) – if a specific gift is not in testator’s estate, the gift is extinguished
• Intent – beneficiary may be entitled to the replacement for, or cash value of, the original item, if the beneficiary can show that is what the testator wanted
• UPC – right to property that decedent aquired as a replacement - prevents ademption if there is proof that ademption would be inconsistent with the decedent’s intent, tracing is not required – receives value of property paid for out of other assets of estate

• Power of atty sold house to pay medical
• expenses after nursing home told poa not to bring up finances to decedent.  Ct. held house was not adeemed and beneficiary
• was entitled to proceeds

• Common law– question of intent – did testator intent gift to be taken out of will
• UPC – will not be treated as partial satisfaction unless there is a writing evidencing intent 

•  Common law
• – mortgage paid off by estate

UPC – Take home with debt absent an express statement otherwise 

• Residuary devises
• General devises
• Specific and demonstrative devises –
• reduced pro rata

To the extent appropriate

• Ct. held a property
• interest passed to the beneficiary – a contingent equitable interest in the
• remainder.  So, passed before death
• and is not testamentary 

• Ct. held beneficiaries of a trust did not have standing to
• contest the trust because there is no interest until death

• had a revocable trust that
• was missing at death.  Issue was
• whether the law of wills that missing will gives the presumption of revocation
• applies.  Ct. held the trust itself
• set specific terms for revocation, so the trust was not revoked.

• During settlor's life,  only settler can enforce
• UTC - beneficiary can bring challenge, but only at settlor's death
• Can file for a guardian if problems occur during life and assets start to dissipate

Restatement/UTC/ State street bank - creditor can reach trust assets after death

JT, life insurance, retirement, some US savings bonds with POD benefits

• UPC - revokes dispositions to divorced spouse in all governing instruments
• Majority - revoking provision for divorced spouse do not apply to life insurance or other nonprobate transfers
• Minority - revocation on divorce provision applies to specified non-probate transfers

H and W divorce, H marries a new woman and executes a holographic will that says he leaves her the insurance policy, but he had never changed the beneficiary (still his 1st wife); Court finds that it goes to the first wife, because you can’t change the beneficiary by will

Most cts have upheld retroactive application

Pension govered by ERISA.  Ex-wife was beneficiary.  WA statute stated wife’s status would be revoked upon divorce.  ERISA requires payment to the beneficiary named.  Ct. holds ERISA preempts state law because the statute explicitly states it preempts state laws, there is a significant effect because it would change the beneficiaries, and ERISA goal is to administer a nationally unified plan

• Slayer statutes contradict ERISA
• Well established part of federal common law that a slayer can't benefit
• Federal common law recognized substantial compliance

• JT 
• POD
• Agency acct - Convenience acct

• Incorporation by reference (cannot incorporate documents after Will was executed/ if the trust is amended, will needs amended)
• Independent significance (trust does not have to be in existence when the will was executed, but it must have assets at the time of death)
• UTATA - a will giving assets to a trust is valid even if the trust is amended or created after the will and even if the trust is unfunded

an unfunded trust with the trust as beneficiary of will, insurance policy, and retirement fund.  H took nothing because the trust was unfunded and only spoke at death.  Ct. confined holding to specific facts of this case

• Ownership of assets during life 
• Bank acct - net contribution rule
• Unilateral undoing of the act
• realty - to sever, transfer into tenancy in common
• bank acct - can unilaterally close the acct
• creditors
• realty - creditor cannot reach after death
• bank acct - creditor can access decedent's interest

Majority - an agent acting under poa can create, modify, or revoke a trust if the power to do so is expressly granted in the poa instrument

W, under durable poa, created a trust to give herself a particular interest in a house.  The trust gave her more than under the will.  Ct. held she could create a trust because provisions in the trust instrument allowed it

If couple lives for a number of years in a non-community property jurisdiction, then they move to a community property jurisdiction, they may get an elective share

• Social security
• Employee pension plans

• Homestead right
• exempt tangible personal property
• family allowance

• UPC - yes, independent of any needs determination, but the money is to be put in trust and used only for needs - after death, it is put back in the trust to go to whoever decedent wanted it to go to
• Majority - consider all the surrounding facts and circumstances
• Minority - yes, if it is to spouse's economic benefit, calculated mathematically

B has alzheimers and is institutionalized.  Ct. held guardian could elect because otherwise she would lose Medicare

• Majority - if you create a revocable trust during the marriage with your estate, then it will be subject to the elective share
• Minority - elective share cannot reach nonprobate transfers

Exception to extending elective share to non-probate transfers - when a third party creates the trust.  although this is purely a matter of form, not substance

Considers the "augmented assets" of both spouses.  Uses an approximation formula dependent on the length of marriage.  

Yes, by premarital agreement

• - The party attacking it did not execute it voluntarily (duress)
• - It was unconscionable when executed AND
• --party did not get full and fair disclosure
• --did not voluntarily waive any right to full and fair disclosure
• --did not have, or reasonably could have had, adequate knowledge of the property or financial obligations

Financial statement listed shares, but did not state value.  Value was significant.  Ct. held the pre-marital agreement valid because W had knowledge that H was wealthy, independent counsel, and the opportunity to ask questions.  Basically, the ct was saying W waived opportunity to find out worth.

• Show omission was not a mistake if it appears from the will or other evidence: (1) will was made in contemplation of marriage to spouse; (2) Will explicitly stated intent to be effective not withstanding any subsequent marriage; (3) the spouse was provided for by transfer outside the will
• HOWEVER, will not assume mistake if property is left entirely to descendents

Married, divorced, H creates pour over will and trust with son as beneficiary, gets cancer, W takes care of H, gives her life estate in trust, remarries.  Ct. holds W is not provided for in the will; she is provided for in the trust, and statute explicitly stated will.  Issue for the legislature to change (Note this would likely come out differently in other jurisdictions that treat trusts like wills).

Omitted afterborn child has right to share of estate unless: (1) It appears from the will that the omission is intentional; (2) the testator provied for the omitted child 

If a gift is made to an existing child, that gift is divided among the existing children and any omitted afterborns.  Otherwise, it is generally the intestacy share

Assets were in revocable trust.  Statute says probate assets.  Ct. held son losses, statute limited to probate assets.  Does not follow restatement .  Issue for legislature.