Wills & Decedents' Estates

Question 1

The issue is whether the trustee may distribute trust funds for the son’s hospital bill, child support, and loan for the computer-gaming system.

Answer 1

A properly created trust requires a settlor to transfer trust property into trust, appoint a trustee (although a trust will not fail for want of a trustee), provide instructions regarding the distribution of the trust assets, and select beneficiaries. A settlor can create a trust where the distributions of trust assets will be determined by the trustee based on his or her discretion. In this case, the trustee has wide discretion to make distributions if it is in line with the trust instrument. However, at all times, the trust instrument controls how the trustee should act. Where a settlor has created a trust for the support of the beneficiary, and left the distribution to the determination of the trustee, the trustee must act in good faith and must distribute trust assets for necessaries and governmental obligations. Medical care is generally considered a necessary. [child support, hospital bill = yes; gaming system = no]

Question 2

The issue is whether the trustee abused his discretion in refusing to distribute trust funds to the son.

Answer 2

A discretionary trust is created when the settlor provides instructions to the trustee to disburse funds based on the trustee’s discretion. While the trustee has wide discretion in determining asset distribution, the trustee must act in good faith when making distributions. A trustee can be held to abuse his or her discretion when the trustee acts on his discretion, but bases that discretion on personal resentment of the beneficiary or other unreasonable reason. In this way, the trustee can violate the trust instrument, which controls the trustee’s actions at all times.

Question 3

The issue is whether the son’s creditors may obtain orders requiring the trustee to distribute trust funds.

Answer 3

A trust with a spendthrift provision makes the trust assets inalienable. Therefore, the beneficiary cannot touch the trust property, and neither can most creditors unless a distribution is made. However, an exception to this rule is where the beneficiary of the trust has obligations such as child or spousal support. In that case, the government creditor can touch the trust property and withdraw directly from the principle without waiting for a distribution. Another exception is where the trust is a discretionary trust and the trustee abuses his discretion by not making a distribution when one is due.

Here, the settlor created a trust with a spendthrift provision. This made the trust’s principle assets inalienable and untouchable by most creditors until a distribution is made. However, the government can require the trustee to pay their claims against the son for child support from the trust’s assets. Furthermore, as discussed above, the trustee should have made a distribution to the son, if the trustee had been acting in good faith, for the son to pay the hospital bill. Because the trustee failed to act in good faith by rejecting the son’s request, the hospital may be able to require the trustee to pay their claims based on the trustee’s abuse of discretion in not making the distribution.

Question 4

The issue is whether the probate court will follow the law of State A, which does not recognize holographic wills, or the law of State B, which does.

Answer 4

When an individual dies testate, the state law which will govern the distribution of their will is the state where the testator was domiciled when the testator died. Domicile is determined by an individual’s presence within the state and their intent to remain, which can be shown by ownership of property in the state.

Question 5

The issue is whether Testator’s will was a properly executed holographic will.

Answer 5

In order for a will to be properly executed, a testator must have present intent to execute a will, must have testamentary capacity, and must comply with the required formalities. A testator has present intent to create a will if they execute a will with the intent to presently execute the document, not to create the will in the future. A holographic will is generally defined as a will in which the material portions are written in the testator’s own handwriting and which is signed. The State B statute additionally requires the will to be dated in order to be valid.

Question 6

The issue is whether the will, which did not distribute property to Testator’s son Robert, should be interpreted to provide any devise to the omitted child.

Answer 6

A probate court should follow the terms of the will and distribute the testator’s property accordingly. The UPC and most courts attempt to limit the possibility of an accidental disinheritance by allowing for a child who is born after the execution of a will to take in equal share to the other children included in the will. However, if a child was born before the execution of the will, the probate court should follow the face of the will and omit the children from distribution unless it is clear that the omission was accidental.

Question 7

The issue is whether the will leaves half of Testator’s estate to Martha, John’s former wife, or to Nancy, John’s current wife.

Answer 7

When interpreting a will, a court is only permitted to consider extrinsic evidence when the terms of a will are ambiguous. Upon a finding of ambiguity, a court may consider both direct and circumstantial evidence in an effort to best determine the intent of the testator.

Under the general rule of construction, a will “speaks” as of the time of death. Courts are reluctant to disturb the plain meaning of a will regardless of mistake. However, if there is an ambiguity, courts allow extrinsic evidence to resolve it. Traditionally, courts distinguished between patent and latent ambiguities; however, many states no longer make this distinction.

Question 8

The issue is what effect Martha’s death has on the distribution of the will, and whether her children are entitled to her shares.

Answer 8

Under common law, if a beneficiary died before the testator, the gift failed and went to the residue unless the will provided for an alternate disposition. Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under most statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary. State B, however, has a broad anti-lapse statute that is not limited to a testator’s relations. Instead, if any beneficiary under a will predeceases the testator, that beneficiary’s surviving issue can take the deceased beneficiary’s share unless the will provides otherwise.

Question 9

The issue is whether either Mary or Grandchild has standing to contest Testator’s will.

Answer 9

Only directly interested parties who stand to benefit financially may contest a will. Intestacy statutes generally favor the decedent’s surviving spouse and issue. Under intestacy laws, an intestate’s children take to the exclusion of their own descendants.

Question 10

The issue is whether Testator’s will can successfully be contested on grounds of lack of mental capacity.

Answer 10

In order to validly execute a will, Testator must have “mental capacity.” A testator has mental capacity if she knows (1) the nature and extent of her proprty; (2) those persons who are the natural objects of her bounty; (3) the disposition the testator is attempting to make; and (4) the interrelationship of these items in connection with the testatmentary plan formulated in the will. All persons are afforded the presumption that they have mental capacity. The burden of proving that the testator lacks mental capacity rests on the contestant of the will.

Question 11

The issue is whether Testator’s will can successfully be contested on grounds of lack of due execution.

Answer 11

At common law, strict compliance with the formal requirements of wills is required. 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 (b) requested the witnesses to act in such capacity.

A minority of jurisdictions and the UPC have granted courts the power to probate a non-compliant will in situations when there is clear and convincing evidence that the decedent intended for the document to serve as her will and has substantially complied with the statutory formalities. Under this approach, if the execution of a will substantially complies with most of the formalities, or at least the most important of them, the will is valid.

Question 12

The issue is whether Testator’s will complies with state law for a validly executed will.

Answer 12

A holographic will is in a testator’s handwriting, signed by the testator, and need not be witnessed.

Question 13

The issue is whether a Testator can change her life insurance beneficiary in her will.

Answer 13

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.

Question 14

The issue is whether the memorandum is incorporated into the will by reference.

Answer 14

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (1) it existed at the time the will was executed; (2) the testator intended the writing to be incorporated; and (3) the writing is described in the will with sufficient certainty so as to permit its identification.

Question 15

The issues are whether the $40,000 bequest to Husband lapsed, and the order in which the bequests will abate.

Answer 15

Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition. Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.

[Husband predeceased T and is survived by his daughter from a previous marriage; however, H does not fall w/in anti-lapse statute b/c he is not related to T by blood. Thus, H’s daughter takes nothing and the $40,000 bequest to H passes to the residuary estate.]

Gifts by will are abated, i.e., reduced, when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated in the following order: (1) intestate property; (2) residuary bequests; (3) general bequests; and then (4) specific bequests. Abatement within each category is pro rata.

[T did not indicate an order, residuary bequest to Son abates and Son receives nothing; T left $25,000 to Church, Library, and School but bank account only has $60,000, so C, L, and S will be reduced pro rata to each receive $20,000]

Question 16

The issue is whether Testator had sufficient mental capacity to validly execute the 2019 codicil to her will.

Answer 16

In order for a will to be validly executed, the testator must have sufficient mental capacity at the time of the execution. In order to be deemed mentally competent, the testator must understand who the intended beneficiaries of her will are, what her property is, what the beneficiaries will be receiving, why she is entering into the will and distributing assets/money to the beneficiaries, and how she is doing so.

Question 17

The issue is whether Testator’s mistaken belief that her son was using drugs should invalidate her codicil.

Answer 17

If a testator decides to distribute or withhold property from a beneficiary based on a mistaken belief, a court may sometimes choose not to give the will or the provision effect. In order to invalidate a will or provision for mistake of fact, the interested party must show that but for the mistake, the change or provision would not have been made.

[burden on the son to prove that regardless of her other concerns, testator would not have revoked her bequest to him absent her mistaken belief that he was using drugs]

Question 18

The issue is whether University is entitled to $5,000 from Testator’s estate either through (a) the doctrine of incorporation or (b) because her 2019 codicil sufficiently validated her previously invalid 2014 codicil.

Answer 18

To be valid, a codicil must meet the same formalities as a will: It must be written, executed with testamentary intent and capacity, and signed by the testator in the presence of two witnesses. A holographic will or codicil must be entirely written in the testator’s handwriting and signed by the testator, though there is a modern trend toward requiring only that the material provisions of the will/codicil be handwritten.

Under the doctrine of incorporation, a separate document may be incorporated into a will if it: (a) existed at the time of execution and (b) was described with sufficient certainty such that it could be identified.

[Part of the analysis I missed: Although the 2014 document was not incorporated or a valid codicil, the Testator did affix the document to the back of her will. A codicil can validate a previously valid will or codicil if it appears that the testator is attempting to re-establish her previous will codicil. Here, the testator’s 2019 codicil stated that inall other ways she was republishing her 2012 will. Becauset the 2012 will now included the 2014 document affixed/stapled to the back of it, it was likely republished and the University will be entitled to the $5,000.]

Question 19

The issue is whether a health-care agent designated under a durable power of attorney has the power to instruct the doctor to enter a DNR order.

Answer 19

A power of attorney (POA) is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent. A healthcare POA appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.

An agent must make a healthcare decision in accord with the principal’s instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent’s determination of the principal’s best interest.

Question 20

The issue is whether, in a wrongful death action, the son would be liable for the patient’s death.

Answer 20

The typical durable healthcare POA statute shields the agent from civil liability for healthcare decisions that are made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong.

Question 21

The issue is whether the son is barred from taking under the patient’s will because his actions intentionally caused her death.

Answer 21

In general, a party cannot take property from a decedent when the party was responsible for the decedent’s death. The killing must have been intentional and felonious to bar the killer from taking.

[Further, allowing such a statute to apply to a healthcare POA would undermine the purpose of the POA, which is to appoint a trusted family member or friend to act in good faith on the patient’s behalf. If such conduct prohibited the agent from taking under the decedent’s will, the patient would not appoint potential heirs as agents and potential heirs would refuse to serve.]

Question 22

The issue is the effect of the pending divorce on Mary’s bequest under John’s will.

Answer 22

In most jurisdictions, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive. Spouses who are separated, or are in the process of obtaining a divorce, remain spouses until the issuance of a final decree of dissolution of the marriage, unless a complete property settlement is in place.

Question 23

The issue is the effect of the prenuptial agreement on Mary’s bequest under John’s will.

Answer 23

A spouse may waive in whole or in part, before or during the marriage, the right to receive property that would pass by intestate succession or by testamentary disposition in a will that was executed before the waiver.

Question 24

The issue is whether Son is precluded from inheriting from John due to the adoption of Son by Aunt.

Answer 24

Adoption curtails all statutory inheritance rights between the natural parents and the child. Here, John consented to the adoption of Son by Aunt, and Son is therefore precluded from inheriting, by statute, from John.

Son may argue that John intended to include Son in his bequest to any “children who survive me.” Although the adoption of Son by Aunt severs his statutory inheritance rights, Son could argue that John intended to bequeath him a gift via this provision of the will, which was executed before Son was born. John was clearly aware of Son’s existence during his lifetime and took on a substantial role in Son’s life after Aunt died. Accordingly, Son may be able to establish that John intended to include Son in his bequest.

Question 25

The issue is who should be appointed as the personal representative of John’s estate.

Answer 25

A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent’s affairs. Any person with the capacity to contract may serve as a personal representative. When a will is silent regarding the appointment of a personal representative, a court will generally appoint an administrator.

A person named in the will has priority for appointment, followed by the surviving spouse who is a devisee of the decedent, then other devisees, a surviving spouse who is not a devisee of the decedent, other heirs of the decedent, and 45 days after the death of the decedent, any creditor.

Question 26

The issue is whether Testator’s will should be invalidated in whole or in part.

Answer 26

If a will or a portion of a will is the product of undue influence, it may be set aside. The burden of establishing undue influence is on the will contestant, who must show that (1) the testator was susceptible to undue influence; (2) the alleged wrongdoer had the opportunity to exert undue influence upon the testator; (3) the alleged wrongdoer had a disposition to exert undue influence; and (4) the will appears to be the product of undue influence. In many jurisdictions, a presumption of undue influence arises when there is a confidential relationship between the testator and the alleged influencer and suspicious circumstances surround the drafting of the will. If the court finds that the bequest to Harriet was the product of undue influence, it may invalidate the entire will or only the bequest to Harriet.

Question 27

The issue is to whom the estate would pass if the will is entirely invalidated.

Answer 27

Assuming the court invalidates the entire will as the product of undue influence, Testator’s estate will be distributed to his heirs. In every jurisdiction, Testator’s heirs would be his two surviving children and his grandchild who takes as the representative of Testator’s predeceased child.

Question 28

The issue is to whom the estate will be distributed if the will is only partially invalidated.

Answer 28

When a residuary bequest fails, the question arises as to whether the invalidated share passes to the testator’s heirs or to the remaining residuary legatee(s) [the other people named in the will split the invalidated interest instead of it going back to the general intestacy residue]. Under the common law “no residue of a residue” rule, the invalid share passes to the testator’s heirs. Many courts today reject the common law rule because the testator’s execution of a will evidences an intention to benefit the legatees named in the will to the exclusion of heirs, particularly would-be heirs not mentioned in the will. The residue of a residue approach has been adopted by the UPC.

Question 29

The issue is whether Donna is entitled to the 200 stocks devised by T’s will or the 300 stocks in the estate at the time of T’s death.

Answer 29

Under common law, when a testator makes a gift of stocks, only the additional stocks caused by stock split were included, and the stocks received as dividends were not part of the gift. Under the UPC, stocks caused by a stock split or by dividends are all included in the specific bequest. Because T received 100 shares as stock dividends after the execution of the will devising 200 shares to Donna, all 300 will go to Donna under the UPC.

Question 30

The issue is how the rest of T’s estate will pass since there is no residuary clause.

Answer 30

When a will only partially disposes of a testator’s property, the remaining assets will pass through the laws of intestacy. The jurisdiction here has adopted the UPC, which uses the method of representation to distribute intestate assets. Per capita with representation involves going to the first level of descendants where there are living members, dividing equally by the number of living members and any deceased members with issue, and giving the equal share to the living member. Then, at the next level of descendants, all of the remaining assets are pooled together and divided equally by the number of living members in that generation and deceased members leaving living issue.

Question 31

The issue is whether the $30,000 gift and note 3 years later saying the gift was to reduce the beneficiary’s intestate share were an advancement. [UPC]

Answer 31

An advancement occurs when a testator makes an inter vivos gift to a person who likely would take under intestacy, intending that to be an advancement on the gift they would receive after the testator dies. However, an advancement usually must be in writing, and when the writing is made by the grantor, it must be contemporaneous with the gift. Only if the writing demonstrating an intent to have the gift act as an advancement is made by the beneficiary can the writing be made at a later point.

Question 32

The issue is whether the will was effectively revoked by cancellation of a material portion of the will with the intent to revoke it.

Answer 32

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law. Physical destruction may take the form of burning any portion of the will or canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 33

The issue is whether the omission of the husband’s child was intentional or whether the pretermitted child statute should apply.

Answer 33

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the testator’s will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental. An omitted child statute does not apply if: (i) it appears that the omission of the child was intentional; (ii) the testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or (iii) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.

Question 34

The issue is how the bank account should be distributed.

Answer 34

The bank account is not tangible personal property, so it will pass under the rules of intestacy. The laws of intestacy state that where there is no surviving spouse or issue, the intestate estate is distributed to the testator’s parents. When there are no parents, it goes to the issue of the parents–here, Adam and Beth. When there are multiple members of a class, the estate is split equally among the class. Thus, the bank account will be split equally, $5k to Adam and $5k to Beth.

Question 35

The issue is whether Brian, an adopted child, can inherit from Zach, an intestate decedent.

Answer 35

A parent-child relationship must be established for an individual to be classified as issue of another. Under the UPC and the majority of jurisdictions, adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions.

Here, Zach adopted Brian, the biological child of Zach’s deceased wife. The State A distribution scheme does not mention adopted children. If “children” includes adopted children under State A law, Brian would be entitled to an intestate share of the State A house and the bank account.

Question 36

The issue is whether Carrie, a biological but nonmarital child, can inherit from Zach, an intestate decedent.

Answer 36

The common-law rule was that if a child was born out of wedlock, he could not inherit from his natural father. Most jurisdictions provide that an out-of-wedlock child can inherit from his natural father if (i) the father subsequently married the natural mother, (ii) the father held the child out as his own and either received the child into his home or provided support, (iii) paternity was proven by clear and convincing evidence after the father’s death, or (iv) paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. It has been held unconstitutional to deny inheritance rights to a nonmaterial child when paternity has been established during the father’s lifetime.

Here, the facts indicate that Zach’s paternity of Carrie was adjudicated during Zach’s lifetime. Thus, the State A law excluding all nonmarital children, regardless of whether paternity has been established, is unconstitutional and Carrie is entitled to share in Zach’s estate under the State A law. Carrie is also entitled to share in Zach’s estate under the State B law because she is his biological child.

Question 37

The issue is whether Testator’s will was republished by codicil or incorporated by reference.

Answer 37

A valid will must be in writing and signed with present testamentary intent by the testator in the joint presence of two witnesses. Here, Testator’s unsigned, unwitnessed “Last Will and Testament” that left all assets to Nephew is not a valid will because it fails to meet these requirements.

A codicil is a supplement to a will that alters, amends, or modifies it. A codicil must be executed with the same formalities as a will, but it need not be executed with the same formalities as the will that it alters, amends, or modifies. A validly executed codicil republishes the will as of the date of the codicil. Though the codicil here was validly executed, the original will was not. The document that amended the testator’s original wishes was properly executed and so, validly left the 400 shares of XYZ Corporation common stock to Aunt and the 340 Green Avenue residence to Cousin. However, the “Last Will and Testament” was not republished and Nephew will receive none of the probate assets.

A validly executed codicil may validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will. A will may incorporate by reference another writing provided the other writing existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty so as to permit its identification.

Here, the Last Will and Testament existed at the time the valid codicil was executed and the codicil references a document when it states, “I republish my will.” However, this statement likely fails to identify the document with sufficient certainty. As such, the invalid Last Will and Testament was not incorporated by reference and was not validated by the codicil.

Question 38

The issue is whether the doctrine of ademption prevents Cousin from succeeding to Testator’s home.

Answer 38

A specific bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate. If the subject matter of a specific bequest is missing or destroyed (“extinct”), the beneficiary takes nothing. The property is adeemed regardless of the testator’s intent. However, under the UPC, the bequest is adeemed only if the facts and circumstances establish that ademption was intended. The UPC permits a beneficiary of a specific extinct gift to take the property acquired by the testator as replacement property.

Here, Testator made a specific bequest of the property at 340 Green Avenue. Because the Green Avenue house was not part of the estate at Testator’s death, it would adeem and Cousin would take nothing. Daughter, as intestate heir, would inherit the house.

Under the UPC, Cousin might be able to take the Elm Street property if Cousin could establish that it was not Testator’s intent that the gift of her home be adeemed when she sold the Green Avenue house and replaced it with the Elm Street house. However, Testator intended Cousin to have the five-bedroom Green Avenue house because he had such a large family. The Elm Street house was smaller with only two bedrooms. Thus, Cousin may have difficulty establishing Testator’s intent to use it as replacement property. It is likely that the doctrine of ademption prevents Cousin from inheriting the Elm Street house.