CALI - Non Testamentary Documents Flashcards
John executed his will, which disposed of his estate to “those persons whose names are written on the back of an envelope dated January 4, 1993 and which will be found in my desk in my study.” The will was dated January 27, 1993 and was executed with all required formalities. At John’s death, the list was found with the names Arnold Smith and Tamara Logan on it. Under these circumstances, who should take John’s estate?
Arnold Smith and Tamara Logan because the list was incorporated by reference.
Since the list was in existence at the time the will was executed, there is language on the face of the will intending to incorporate it, and it is described in the will sufficiently to permit its identification, the will is incorporated by reference and the estate can be distributed to the persons named on the list. U.P.C. section 2-510.
In the previous question, suppose that, subsequent to the execution of the will, the testator had crossed out the name of Tamara Logan on the list and written below it the name of Susan Brown. Under these circumstances, the court should:
Admit the will to probate but distribute the estate to the decedent’s intestate heirs.
This is the most likely result. The list, as originally incorporated, has been changed. Most courts would refuse it as “not being in existence” at the time it was incorporated unless it can be shown that the amendment was an act of independent legal significance. Since the amendment has no significance apart from naming beneficiaries of the estate, that is not likely. U.P.C. sections 2-512 and 2-510. A will can be admitted to probate even without named beneficiaries and the estate is distributed according to the rules of intestate succession.
Al’s valid will leaves $30,000 to whomever wins the 2004 election for the Governor of the state of Missorida. Al executed the will in 1990. David Imoto won the election for Governor of Missordia in 2004. Al dies in 2004 with the 1990 will still in effect, can David take the $30,000?
The election is an event of independent legal significance. It exists for a reason other than to change the disposition of Al’s will. Therefore, we can use the election to identify the beneficiary of the $30,000. U.P.C. section 2-512.
Lou’s will states “I leave $10,000 each to the people whose name I will write on a piece of paper and leave in my desk drawer, at a later date.” When Lou dies a piece of paper is found in his desk with the names of Joel Torry and Greg Marsh. Will Joel and Greg be entitled to the $10,000?
No.
The paper does not exist for a reason other than to change the distribution of Lou’s estate. Therefore, it is not a fact of independent legal significance. The list cannot be incorporated by reference since it was not in existence at the time the will was executed. U.P.C. section 2-512. It cannot be used to identify the beneficiaries of the $10,000.
Brian executed a valid will, which contained a clause that stated “I will prepare a list of small bequests of personal items which I want distributed to the persons named on the list.” At his death, the executor found a typed list with the will, which states “my gold Bulova watch to Ed Schmidt; my diamond ring to Bob Long; and my gold chain to John Saxon.” The list was signed and dated after the will was executed. Should the court allow distribution of these items to the named persons?
Yes.
Even though the list cannot be incorporated by reference since it was not in existence at the time the will was executed and is not an act of independent legal significance, U.P.C. section 2-513 allows the will to refer to a list to dispose of items of tangible personal property other than money. The list must be signed by the testator and describe the items and devisees with reasonable certainty. It can be prepared before or after the execution of the will.
Robin executed a trust agreement, which had a named trustee and beneficiaries. She did not fund this trust with a trust res. Subsequently, Robin executed a will which left her entire estate to the above trust. After the execution of the will, Robin changed two of the beneficiaries of the trust. Under these circumstances, may Robin’s estate be distributed to the trust?
Yes.
Even though the trust cannot be incorporated by reference since it was amended and the amendment was not an act of independent legal significance, U.P.C. section 2-511 allows a pour over of the assets of the estate to the trust if the trust is identified in the will and its terms are set forth in a written instrument executed prior to, contemporaneously with, or subsequent to the execution of the will. The devise is not invalidated by the amendment of the trust after the will was executed.
