T&E STUDY CHAPTER 1-6 Flashcards
Right vs. privilege
A decedent has the right to dispose of his or her property at death. The state has broad authority to regulate this process, but cannot completely abrogate this right.
Hodel v. Irving:
The government cannot abrogate completely. Native American case. Court overturned law that forbade devising fractional interest in land. Cannot abrogate power of disposition, it is a part of the bundle of sticks. Previously the right to transfer property at death was not viewed as a constitutionally protected right.
Shaw Family Archive v. CMG Worldwide
The post mortem right of publicity. A will can only devise property owned by the testator at the time of death. Marilyn Monroe case.
Conditional GIfts
A decedent may condition a beneficiary’s gift on the beneficiary behaving in a certain manner as long as it does not violate public policy
Conditional GIfts are generally upheld unless:
….the condition constitutes a complete restraint on marriage, requires practice of a certain religion, encourages divorce or family strife, requires the committing of a crime, or dictates the destruction of the property. Look for “motivated by malice”
Shapira v. Union National Bank
Will required sons to marry a Jewish girl whose both parents were Jewish” within 7 years of father’s death. Court found enforcing the condition (1) did not offend a fundamental right to marry in the constitution, and (2) it was only a partial restraint, not a full restraint on marriage. They allowed the provision to stand.
Administration of the Probate process includes:
- collecting the decedent’s probate assets, 2. paying off creditors, and 3.distributing property to those entitled.
UPC §3-301: Rules of Informal Probate
No notice given
Representative petitions for appointment
Petition must contain pertinent information about decedent and names and addresses of spouse, children or other heirs, and any devisees (if will is present)
f petition is for probate of a will—a copy of the will shall accompany
Executor swears that to the best of his/her knowledge—will was faithfully executed
No proof of witnesses required
Within 30 days—personal representative must send notice to all interested parties, including heirs apparently disinherited
Any interested party can file a petition for formal probate
UPC § 3-401: Formal Probate
Litigated judicial determination after notice to interest parties is filed
Formal proceeding may be used to probate a will, block informal proceedings, or secure a declaratory judgment of intestacy
Survival Requirement UPC 2-104 and 2-702: Modern Trend option 2
Other jurisdictions require the taker prove by clear and convincing evidence that he or she survived the decedent by 120 hours (5 days)
other modern trend of survival requirement
some jurisdictions require the heir to prove by clear and convincing evidence that he or she survived the decedent
CL survival requirement
heir must prove by the preponderance of the evidence that he or she survived the decedent by a millisecond.
Janus v. Tarasewicz:
Tylenol poisoning case. Husband dies and then wife 48 hours later. Husband had life insurance policy naming wife beneficiary and his mom in the vent his wife predeceased him. Survivorship is a fact that must be proven by a preponderance of the evidence by the party’s whose claim depends on survivorship.
Adoption UPC
As a general rule adoption severs the relationship between the adopted child and the natural parent as that is the same gender of the adopting parent. Exception if being adopted by stepparent (child can inherit from all three, but the natural parent being replaced by the adopting parent cannot inherit through the child.
Minary v. citizens fidelity bank
You cannot adopt your spouse and have them be treated as your issue for inheritance of a remote ancestor.
Hall v. Vallandingham
Whether kids who had been adopted by their stepfather could inherit via intestacy from their natural uncle.
Rule: Family Law Art. Section:5-308 plainly mandates that adoption be considered ‘”rebirth” into a completely different relationship, and once a child is adopted, the rights of both the natural parents and relatives are terminated
Parentelic System
Go up to you parents level, and look at all issue. If none, look at your grandparents level and all of their issue. If none, go to Great grandparents level and all their issue.
English Per Stirpes (Strict Per Stirpes) -
(1/3 of states follow) Treats each line of descent equally. Divided into as many shares as there are children.
Child born out of wedlock (UPC)
can inherit from natural parents, but for natural parent to inherit through child, they must acknowledge and support the child.
Posthumously conceived child - general rule
PC qualify as child of the decedent parent as long as (1) parent authorized the use of his or her genetic material while alive; and (2) the child is conceived within a reasonable period (2-3 years) of child’s death. If it needs to be in writing and exact length of time period depend on jdx.
Woodward v. Commissioner of Social Security
Husband undergoing leukemia treatment freezes sperm in worries he would go sterile, and he does shortly thereafter. Wife has children with his sperm and is denied SS surviving children benefits. Court lays out steps to qualify as child of the decedent parent: as long as (1) parent authorized the use of his or her genetic material while alive; and (2) the child is conceived within a reasonable period (2-3 years) of child’s death.
In Re Martin B:
In dealing with trusts, wills, etc “where a governing instrument is silent, children born of this new biotechnology with the consent of their parent are entitled to the same rights “for all purposes as those of a natural child.”
UPC 2-705 – Posthumous Child
its ok as long as (1) the predeceased parent authorized post-humous use of sperm, and (2) the child is living at time of distribution date, or is in utero 36 months of or is born within 45 months of distribution date.
Astrue v. Caputo (2012)
Federal government looks to state intestacy law to see if federal death benefits can be inherited by posthumously conceived children
UPC 2-121 - Surrogacy
says that in the absence of court order, a surrogate does not have the requisite parent-child relationship
Bars to sucession- slayer rule
if the taker killed the decedent, and the killing was felonious and intentional, the taker is treated as having predeceased the decedent
In re Estate of Mahoney:
wife convicted of manslaughter of her husband. Vermont had no slayer statute. Court ruled wife must hold money in constructive trust for benefit of the next intestate heir.
Disclaimer
Heir or devisee declines to take property (seomtimes to avoid taxes) disclaimant treated as predecesed decedent
Drye v. US
Disclaimed inheritance could be gone after for taxes
Drye’s daughter took money and put it in trust that benefitted Drye
Legal title to the money was in the hands of another, who was not subject to the tax lien of the IRS
But Drye had exercised dominion over it in allowing it to be transferred
Thus it was in fact his property
Sound Mind
the ability to know (1) the nature and extent of his or her property, (2) the natural objects of his or her bounty, (3) the nature of the testamentary act he is performing, and (4) how these all relate to constitute a plan for disposing of their property (Cunningham test)
General Capcity
testator is 18 years old and of sound mind.
In Re Wrights Estate
Testamentary capacity cannot be destroyed by showing a few isolated acts, idiosyncrasies, moral or mental irregularities, or departures from the norm unless they directly bear upon and have influenced the testamentary act.The legal presumption is always in favor of sanity, especially after attestation by subscribing witnesses and it is the duty of the subscribing witnesses to be satisfied of the testator’s sanity before they subscribe the instrument.
Wilson v. Lane
A person is mentally capable to make a will if she has sufficient intellect to enable her to have a decided and rational desire as to the disposition of her property.
Insane Delusion
a false perception of reality that the testator adheres to against all reason and evidence to the contrary. Jurisdictions are split on how to handle
Insane Delusion Majority & Minority
Majority: if a rational person could not reach the same conclusion under the circumstances, the belief is an insane delusion
Minority: if there is any factual basis to support the belief, the belief is not an insane delusion.
Breeden v. Stone
(rich kid shoots himself leaves holographic will) To sustain a cause of action, the insane delusion must actually materially affect the will.
Fraud in inducement
a person intentionally misrepresents a fact to the testator to induce the testator to execute a will (or amend a provision or revoke a will) in reliance on the misrepresentation.
Fraud in execution
intentionally misrepresents the nature of the document (either completely or in part) the testator is signing.
Fraud
intentionally misrepresents the nature of the document (either completely or in part) the testator is signing.
Undue Influence
occurs where another substitutes his or her intent for the testators intent; where there is coercion (typically mental or emotional, not physical).
Lipper v. Weslow
Testator had told friends she did not like the relatives she cut out of the will. Thus, there was extrinsic evidence that the will matched her intentions.
Rule: Even where the presumption of undue influence might exist, it may be overcome if independent evidence of testator’s intent matching that in the will exists (such as verbal statements by testator that she didn’t get along with a disinherited party).
Duress
Rule of statement: where a wrong doer performs, or threatens to perform a wrongful act that coerces the donor into making a donative transfer he would not have otherwise made. Transfers procured by duress are invalid.
Latham v. Father Divine:
Mary Sheldon Lyon left her estate to defendant, Father Divine, a leader of a religious group. Plaintiffs, the testator’s first cousins sought to have a constructive trust imposed on the defendant’s gift on grounds that the defendant defrauded and unduly influenced Lyon. The plaintiffs claim that Lyon expressed a desire on several occasions to include them as beneficiaries in her will, but the defendants killed the her before the will could be executed. When an heir or devisee under a will prevents the testator from making a will or deed in favor of another, by fraud, duress, or undue influence, such heir or devisee will be deemed a trustee over the gift in favor of the intended beneficiary.
Pope v. Garret
Innocent heirs who benefit from duress are also barred from collecting.
Torious interferece with an expectancy
Plaintiff still has to prove fraud or undue influence. Requires (1) an expectancy, (2) a reasonable certainty that the expectancy would have been realized but for the interference; (3) intentional interference with the expectancy; (4) tortious conduct involved with the interference (such as fraud or undue influence, and (5) damages. Advantages include (1) punitive damages available, and (2) standard statute of limitation, not the shortened probate period.
Schilling v. Herrera
The brother, the decedent’s only heir-at-law, alleged that the decedent named him in her will as her personal representative and sole beneficiary. She was later hospitalized and, after her release, moved in with the caretaker. Alleged the caretaker used undue influence to convince the decedent to name caretaker as personal representative and sole beneficiary. Caretaker didn’t call brother about death until after will had been executed
No Contest Clauses
Says if a beneficiary under the instrument sues to contest the instrument, he loses whatever he would take under the instrument
Are often construed narrowly, but are frequently held valid
Majority/UPC Approach does not enforce such clauses if there is “probable cause” to support the challenge
Minority approach does not enforce, regardless of good cause, if claim is one for forgery, revocation, or misconduct by someone who was active in procuring the will
Executing a Valid Will
Assuming an individual has the testamentary capacity, the next requirement for a valid will is that it is properly executed. This is a function of two variables: The jurisdiction Wills Formalities Act and how strictly the court requires compliance with those formalities.
Worst Evidence Rule
In most states you are barred from bringing a wll contest claim until the testator has died.- person who executes will has best evidence of intent and is dead
Executing a Valid Will - Functions
Ritualistic - impress upon testator the finality of the act of executing a will
Evidentiary - provide satisfactory evidence the document reflects testator’s wishes
Protective - protect testator’s intent and will from fraudulent claims
Channeling - Encourage individuals to consult an attorney and standardize wills to decrease administrative cost and burden on the probate court
Common Law Approach to Attested Wills
Three basic requirements are (1) a writing that is (2) signed by testator and (3) witnessed.
Jurisdictions add in a variety of other requirements (and have different requirements for those listed above.)
A typical common law Wills Act can look like this: (1) a writing (2) signed (3) at the foot or end thereof (4) by the testator, (5) or by another (6) in his presence (7) and by his direction, (8) such signature made of acknowledge (9) by the testator (10) in the presence (11) of two or more witnesses (12) present at the same time (13) and such witnesses shall attest [sign] (14) and shall subscribe [sign at the end of] the will (15) in the presence of the testator.
b) Historically (common law) courts have required STRICT compliance by the testator on each statutory requirement, regardless of how clear his intent was. “The Strict Compliance Rule”
In re Groffman
had witnesses sign his will at a dinner party. But the testator had previously signed. Court acknowledged the testators intent was clear, but threw it out because the testator did not sign in front of the witnesses.
Stevens v. Carsdorph
Will was signed by various bank employees, some in front of the testator, others not. None of them saw him sign. Court throughout for strict compliance. The dissent argued that there was no evidence of fraud. Coercion, or undue influence and that substantial compliance with will requirements should be enough.
Common statutory requirements regarding signatures on wills
Anything the testator intends to be his signature is his signature, even an X. In most states, another can sign for the testator as long as the signature is made in the testator’s presence and at his direction.
If the testator begins to sign, and is interrupted, the partial signature does not count as a signature in most states. (Taylor v. Holt)
Taylor v. Holt
a man typed out his name in cursive in front of witnesses, printed it out, and they signed. Tenn. Court held that it was OK.
Common statutory requirements regarding witnesses on wills
Most jdx require the testator to sign or acknowledge his signature in the presence of two witnesses present at the same time. The witness must sign the will and know they are signing the will in most jdx.
Common statutory requirements regarding presence on wills
almost all jdx require that one party must perform in the presence of another party (testator has to sign in presence of witnesses, and vice-a-versa_
Traditional Line of sight approach, party must be able to see the act being performed
Modern approach, party has to understand through the totality of the circumstances that the act is being performed.
UPC 2-502 – abolish requirement that witnesses sign in the presence of testator. Only “presence requirement is for the testator to sign or acknowledge in front of the witnesses.
Common statutory requirements regarding order of signing on wills
some courts hold there is an implicit order of signing requirement (testator before witnesses). Modern trend requires that all sign in one transaction (no one can leave the room while someone else is signing).
UPC 2-502 says it has to be after, but also contains a “harmless error clause”
Common statutory requirements regarding writing below signature on wills
If a gift is typed or hand written below the signatures it depends on jdx.
Some states require all signatures subscribe the will (a new gift would require new signatures underneath).
Common statutory requirements regarding delayed signing on wills
at common law, witnesses have to sign right after the testator does. Modern trend is that they have to sign in a reasonable amount of time of the testator.
Reasonable amount of time is up for debate, but in general the witness has to sign while they can still remember that the execution summary was valid.
Can even sign after death of testator if it is reasonable amount of time.
Interested Witnesses - Generally
if one of the two witnesses will take under the will, the have a conflict of interest. At early common law, the whole will was void. Today jdxs vary their approaches.
Interested Witnesses - Today
Some void the entire gift to the witness
Others purge the interested witness of the “excess” interest that he or she would take if the will were valid
Others only say that the interested witness creates rebuttable presumption of wrong doing on the part of the interested witness.
UPC calls to abolish this rule as it does more harm than good. (Estate of Morea)
Estate of Morea
Two of the three witnesses took under the will. Found a loop hole to allow one of those to take what his share would be through intestacy… making him a disinterested party.
Swapped Wills
Where two testators with the same testamentary scheme (typically husband and wife) mistakenly sign each other’s wills, the traditional common law approach is that the wills are invalid.
Some courts try to save the wills under the misdescription doctrine, where all incorrect reference struck.
Under the modern trend, the will may be probated under scriveners error. (Pavlinko’s Estate)
In Re Pavlinko’s Estate
Ukrainian speakers. Court ruled invalid. Could not use the misdescription doctrine because of specific references (names not brother/husband etc.)
Model Attestation Ceremony
Do in office of drafter.
Ensure you know whose attorney you are – you are drafting to represent interest of testator.
Beforehand, discuss privately with testator:
Check spellings and addresses of beneficiaries.
Chance for attorney to ensure to his own satisfaction that testator is actually competent.
Then – gather all relevant people together:
Testator
Notary
Two or three disinterested witnesses
Drafter of will
No one else should be there.
Drafter asks testator three questions
Is this your will?
Have you read it and do you understand it?
Does it dispose of your property in accordance with your wishes?
Have testator verbally ask witnesses to be witnesses.
Testator signs or initials each page, then signs at end.
Witnesses read attestation clause.
Each witness signs at bottom.
Witnesses execute self-proving affidavit (separate document – sworn statement).
Modern Trend Approach to Attested Wills
Overview: tries to facilitate the execution of attested wills by reducing the number of statutory requirements and/or by reducing the degree of compliance required.
UPC Will Execution Requirements
Witness present at the same time – under the UPC, the witness need not be present at the same time; the testator can sign or acknowledge in front of witnesses separately.
Acknowledgement: under the UPC the testator can either acknowledge the signature or the will in front of another.
Conscious presence: expressly provides that where another signs for the testator, the conscious presence approach applies to the requirement that the party signing the testator’s presence and at his direction.
Writing below signature: UPC does not require the signature subscribe the will.
Delayed Attestation: need to sign within a reasonable period of time.
Judicial Approach “Curative Doctrines”
Substantial compliance: holds that a will was properly executed as long as (1) there is clear and convincing evidence that the testator intended the document to be his will and (2) there is clear and convincing evidence that the testator substantially complied with the Wills Act formalities.
In Re Will of Ranney
will declared invalid after a witness signed the avidavit instead of the will. UPC 2-504 would allow one attestation to apply to both (only a minority of jdx adopted.)
In Re Estate of Hall
Halls signed a draft on the advice of their attorney that it would act as a will until the final version was signed. Destroeyd all previous wills. Montana Ct. applied the “harmless error” doctrine finding a clear intent of the testator.
Harmless error/dispensing power:
holds that the will was properly executed as long as there is clear and convincing evidence that the testator intended the document to be his will.Pros: give flexibility to find testators intent. Con: lose the bright line rules found with Strict compliance… more open to fraud… judicial interpretation.
Notarized Will
Pursuant to the 2008 revisions to the UPC, a will is valid if signed by two witnesses OR a notary.
Only a couple states have adopted.
If prepared without a lawyer, a court may allow a notarized document to be probated because it shows the testator tried to make it official.
Holographic Will
Only about half the states recognize holographic wills (mostly in the south and west)
UPC 2-502 recognizes holographic wills
Holographic wills need not be witnessed, but
(1) there must be a writing,
(2) the writing has to be in the testator’s handwriting (either completely or at least the material provisions depending on jdx,
To off-set the requirement of witnesses
Some jdx require the entire thing to be handwritten, thus any printed material would make the will invalid
UPC 2-503(b) requires only the material provisions be handwritten
(In Re Kimmels Estate)
(3) the writing must be signed by the testator, and
Most, but not all, states do not require the signature to be at the end.
(4) the writing must express testamentary intent.
To prevent drafts, idle thoughts from being probated.
Words like “save this” or that mention importance after death suffice.
Strict compliance requires testamtneary intent be clear through handwriting. “white out” all printed material, and see if the intent is there.
UPC 2-502(c) allows intent to be formed through handwritten and non-handwritten material. (Estate of Gonzalez)
Some jdx also require (5) the writing to be dated.
UPC 2-502
In Re Kimmels Estate (PA 1924)
A letter containing many spelling errors and discussing family matters and the weather, but at the end described valuable papers to go to specific individuals. It was only signed ‘father.’
Estate of Gonzales
filled out a commercial will form.; Showed it to family, but told them he was going to write it cleanly on a second will form. They signed the second will form as witnesses, and he died before filling out the second form. The court allowed the printed words to be incorporated in intent analysis and ruled it a valid holographic will. (UPC approach)
The Courts struggle with degree of compliance for holographic will
On the one hand, not requiring a witness should put more emphasis on the other elements. On the other hand, it is supposed to be a tool for a lay person to convey their property without having to deal with lawyers. (In Re Estate of Kuralt)
In Re Estate of Kuralt
Kauralt handwrote a letter to his mistress saying “I’ll have a lawyer visit the hospital to be sure you inherit the place in Montana’ Court focused on the word inherit and the desire to honor testator’s intent. Found to be a holographic codicil.
Will Revocations
A validly executed will (attested or holographic) can be revoked (1) by act, (2) by writing (if the writing qualifies as a will, (3) by presumption, or (4) by operation of law.
REvocation by Act
A testator can revoke a will by act id (1) the act is destructive in nature (tearing burning, scratching out, etc.) and (2) the testator intended to revoke with the act performed.
Someone else can do the destruction as long as it is in the testators presence and at his direction.
At common law, the act has to affect at least some of the words of the will. The modern trend says it just has to effect some of the will.
Some jdx do not allow for partial revocation by act.
