Wills Hypotheticals

Question 1

What are the required elements for a valid will?

Answer 1

Statutory Formalities: A. T must be 18 or over. B. Will must be written … C. . . . with testamentary intent. The point: Sham instruments will not be given effect. D. T must sign will . . . (Any mark-initials, “X” will serve as signature if so intended. Signature may be another person at T’s direction, in T’s presence.) E. Two attesting witnesses who witness T’s signing . . . (OR, T’s acknowledgment of previous signature or will.) Special Uniform Probate Code (UPC) provisions: Under the UPC, a court can validate a defectively executed will (e.g., there is only one attesting witness) if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will. In addition, under the UPC, a will that is signed by the Testator and a notary is valid without the need for any witnesses.

Question 2

Placement of Signature 1. What happens if a portion of the will (e.g., clause naming personal representative) follows the testator’s signature?

Answer 2

a. Clause present at time of execution: i. Some states: (wills must be signed “at the end”): Matter above the signature is good; but anything below the signature is bad. ii. UPC and majority: No problem; will including clause is valid. b. Clause added after execution: Will is still valid, but the addition is not.

Question 3

Holographic (Handwritten) Wills 2. T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Is it admissible to probate?

Answer 3

a. About half of states: Holographic will not allowed. Not entitled to probate unless two attesting witnesses. b. UPC and some other states: Holographic will is valid if the material provisions are in T’s handwriting and the will is signed by her. Material provisions means identity of property and the beneficiaries who are to receive it.

Question 4

Presence Requirement 3. T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen, “This is my will. It looks OK; where do I sign?” After T signs, will brought out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will been validly executed?

Answer 4

• “Scope of vision” test (minority rule): T and witnesses are in each other’s presence only if they could see each other sign were they to look. • “Conscious presence” test (UPC, majority, better rule): More liberal. They are in each other’s presence if they are conscious of where each other is and what each other is doing.

Question 5

Conflict of Laws Issues 4. T is a domiciliary of Pennsylvania and owns some real estate in state X. While on vacation in Florida, T executes a will that meets the requirements for a valid will in Pennsylvania but not in state X. Later T dies after having changed his domicile to New York. Is the will valid for purposes of disposition of the state X real estate?

Answer 5

Common law and a few remaining states: NO Yes - under UPC and majority if valid in: • Place of execution (Florida) • Domicile at death (New York) OR • Domicile at execution (Pennsylvania)

Question 6

Interested Witnesses 5. “I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting witnesses to the will. Is the will admissible to probate?

Answer 6

a. Older (majority) rule: Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless: 1) There were two disinterested attesting witnesses (supernumerary rule); OR 2) Witness-beneficiary would be an heir if there were no will, in which case she takes lesser of (i) amount given in will, or (ii) intestate share. Nell loses! b. UPC and modern trend: Interested witness rule abolished. “A will or any provision thereof is not invalid because the will is signed by an interested witness.” Nell wins! Note: Interested witness situation frequently raises undue influence issue.

Question 7

Self-Proved Wills - How to execute?

Answer 7

At time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed.

Question 8

Revocation by Physical Act 6. In 2014, T properly executed a will in duplicate giving all property to her children. In 2016 she wrote “VOID” on one of the copies of the 2014 will and drew many vertical lines across front of the one-page document. Will revoked?

Answer 8

Revocation by physical act requires (i) intent to revoke; (ii) physical act: Typical statute refers to “burned, torn, canceled, obliterated, or destroyed.” Sufficiency of Act: Our facts: Act of revocation on 1 executed copy revokes all Compare:

Question 9

Revocation by Physical Act 6. In 2014, T properly executed a will in duplicate giving all property to her children. What effect if T wrote “VOID” on back of will.

Answer 9

i. Most states: No revocation. Cancellations must: touch language of will. ii. UPC: Will is cancelled. Act of cancellation may appear anywhere on the will.

Question 10

Revocation by Physical Act 6. In 2014, T properly executed a will in duplicate giving all property to her children. What effect if T wrote “VOID” on face of Xerox copy of will?

Answer 10

No revocation. Act must be on the will itself, not a picture of the will.

Question 11

Revocation by Physical Act: Will in T’s possession from time of execution until death and found in mutilated condition after T’s death. What is the Presumption?

Answer 11

Presumption: T did mutilating with intent to revoke.

Question 12

Revocation by Physical Act: Will last seen in T’s possession and control not found after T’s death. - What is the Presumption?

Answer 12

Presumption: Reason it can’t be found is that T destroyed it with intent to revoke.

Question 13

Revocation by Proxy 7. T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The order is never carried out. Will revoked?

Answer 13

No because there has been no act. Revocation by another person must be (i) at T’s direction and (ii) in T’s conscious presence

Question 14

Revocation by Proxy 7. a. T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The attorney destroyed the will pursuant to T’s order. Has the will been effectively revoked?

Answer 14

No. Revocation by another person must be (i) at T’s direction and (ii) in T’s conscious presence

Question 15

Lost or Destroyed Wills 7. b. T calls her attorney, the place where the will is located, and orders her attorney to destroy T’s will. The attorney destroyed the will pursuant to T’s order. But if in this situation the will was not revoked, how could it be probated given the fact that it has been destroyed?

Answer 15

Answer: by satisfying “lost wills” statute. In UPC and most states, lost will requires formal proceeding where proponents have burden of proving the contents of the lost will. Copy and one witness or other “clear and convincing proof.”

Question 16

Attorney Liability for “bunging up” (messing up) revocation or execution of will?

Answer 16

Additional issue raised by case where attorney bungs up revocation of will or where attorney bungs up execution of will: Lucas v. Hamm: Attorneys can be sued in negligence for messing up their clients’ wills.

Question 17

Revocation by Inconsistency 8. T’s 2010 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s 2013 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?

Answer 17

a. Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will. Result on above facts: 1) As to M: M gets the ring. 2) As to Y: Y takes $5,000 but not the ring. 3) As to X: X still takes Blackacre. 4) As to Z: Z gets the residue. c. Majority (UPC) Rules: Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not revoke the will.

Question 18

Revocation by Inconsistency What result when there are two wills and the second does not in terms revoke the first: (with/without residuary clause)

Answer 18

1) If the second will has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only to the extent of the inconsistency. 2) If the second will has a residuary clause: Second will presumptively revokes the first in its entirety. Go only with the terms of the second will. Majority (UPC) Rules: Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not revoke the will.

Question 19

Revocation by Operation of Law—Divorce 9. T’s will devises entire estate “to my wife, Sheila, if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as executor “if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. Who takes what? Who serves as executor?

Answer 19

UPC and most states: Divorce following a will revokes all provisions in favor of the ex-spouse; construe the will as if Sheila were dead.

Question 20

Revocation by Operation of Law—Divorce 9. T’s will devises entire estate “to my wife, Sheila, if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as executor “if she is able”; otherwise X is to serve as executor. Two years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. What result if T and Sheila marry each other again?

Answer 20

Sheila is back in the will.

Question 21

Revocation by Operation of Law—Divorce 9. T’s will devises entire estate “to my wife, Sheila, if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as executor “if she is able”; otherwise X is to serve as executor. T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. What result if T and Sheila separated without a divorce before his death??

Answer 21

Sheila takes. Mere separation does not affect her rights. Exception: Separation with complete property settlement: But a complete property settlement is a waiver. Once again, construe will as if Sheila were dead. Related issue: Will divorce revoke a provision for Sheila in T’s revocable inter vivos trust? Yes, under UPC and in most states.

Question 22

Revocation by Operation of Law—Divorce 9. T’s will devises entire estate “to my wife, Sheila, if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as executor “if she is able”; otherwise X is to serve as executor. T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X. What result if T and Sheila separated without a divorce before his death??

Answer 22

Sheila takes. Mere separation does not affect her rights. Exception: Separation with complete property settlement: But a complete property settlement is a waiver. Once again, construe will as if Sheila were dead. Related issue: Will divorce revoke a provision for Sheila in T’s revocable inter vivos trust? Yes, under UPC and in most states.

Question 23

Interlineations and Changes After Execution 10. T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure “$10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. a. Has the $10,000 bequest to X been revoked?

Answer 23

Yes. It has been cancelled.

Question 24

Interlineations and Changes After Execution 10. T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure “$10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. b. Can the interlineation (i.e., the $15,000 bequest to X) be given effect?

Answer 24

No, unless: (i) The will is re-executed; or (ii) The will is republished by codicil.

Question 25

Interlineations and Changes After Execution 10. T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure “$10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. c. Should Dependent Relative Revocation [DRR] be applied to reinstate the original $10,000 bequest?

Answer 25

DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. 1) Disregard a revocation (the cancellation of the $10,000 bequest). 2) Because it was based on a mistake of law (that the interlineation would be effective). 3) Provided the court thinks T would not have revoked the $10,000 bequest but for the mistake.

Question 26

Revival of Revoked Wills 11. In 2008, T executes WILL-1 which devises his residuary estate “in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G.” In 2013, T executes a new will, WILL-2, “hereby revoking all wills heretofore made by me.” WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2015 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, “You know, I think the property should be held in trust for G after all.” With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2017. He is survived by G and by his daughter, S, whom he detests. Who takes what?

Answer 26

a. Has WILL-1 been revoked? Yes, in 2013 at the execution of WILL-1. b. Has WILL-2 been revoked? Yes, by physical act in 2015. c. Revival: Did revocation of WILL-2 “revive” WILL-1? i. Some states: No. To get WILL-1 back must either re-execute it or republish it by codicil. ii. UPC and some other states: Not automatically. WILL-1 is revived only if it still exists; T wanted it revived; and WILL-2 was revoked by physical act d. In states where WILL-1 is not revived, what other issue is raised by these facts? DRR Will court apply DRR to bring WILL-2 back? If T would not have revoked WILL-2 had he known WILL-1 would not be revived.

Question 27

Incorporation by Reference 12. T’s will, after making several specific bequests, devised Blackacre “as designated in a memorandum, that I plan to write, and that will be found attached to this will.” After T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope marked “My Will.” The accompanying note read: “I give Blackacre to the American Cancer Society.” The note was dated two months after the date on the will. T’s sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre?

Answer 27

Not the American Cancer Society; the memorandum cannot be given effect. To incorporate an extrinsic document by reference: (i) Writing must be in existence at time will was executed. (ii) Will must manifest an intent to incorporate the document. (iii) Will must “describe the writing sufficiently to permit its identification.” NOTE: Where they are recognized, holographs can incorporate non-handwritten material by reference.

Question 28

13. T’s will, after making several specific bequests, devised Blackacre and referenced to a memorandum “that I have written.” After T’s death, her will and a signed but unwitnessed typewritten note were found in an envelope marked “My Will.” The accompanying note read: “I give Blackacre to the American Cancer Society.” The note was dated two months before the date on the will (2 months before the will was executed). T’s sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre?

Answer 28

Issue spotting hypo. Does will describe the writing sufficiently to permit its identification? Probably yes because the will and writing were found together.

Question 29

14. T’s will, after making several specific bequests, devised Blackacre and referenced to a memorandum, specifically, “a memorandum that I plan to write that makes disposition of various items in my home that are dear to me.” The accompanying note, written two months after the will was executed, lists various items of furniture and personal effects and names a beneficiary for each item.. What result?

Answer 29

Statutory exception found in UPC and many other states. Will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will. The written list must be signed by T and must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.

Question 30

Acts of Independent Significance 15. “I devise the automobile that I own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death.” Three months after the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T’s will?

Answer 30

Acts having an independent lifetime motive may impact on will as well. So Ned gets the new car and the new employees get the cash gifts.

Question 31

Lapse 16. T executes will in 2014; it provides (inter alia) “I give the sum of $5,000 to my sister, Paula.” Paula dies in 2015; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in 2020. Who takes the $5,000? Under the UPC? e. But what of fact that Paula left a will devising all her property to H?

Answer 31

a. When beneficiary named in the will dies before (or in UPC states, within 120 hours of) the testator, the gift lapses. b. UNLESS it is saved by the state’s antilapse statute. c. The UPC statute applies when the predeceasing beneficiary is T’s grandparent or a lineal descendant of a grandparent who leaves issue who survive T d. Result on above facts: Paula’s two kids split the gift. e. But what of fact that Paula left a will devising all her property to H? Common error. Antilapse statute says Paula’s issue. Paula can’t say otherwise.

Question 32

Class Gifts 17. “I devise Blueacre to the children of my good friend, John Bates; I leave the residue of my estate to X.” At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T’s lifetime, Bates has another child (D), and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates; by Bates’ three children, B, C and D; by Bates’ grandchild A Jr. and by X. Who takes Blueacre?

Answer 32

B, C, and D Class gift rule: When there is a gift by will to a group of persons generically described as a class (“children,” “nephews” and “nieces,” etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

Question 33

Class Gifts 17. “I devise Blueacre to the children of my Brother, John Bates; I leave the residue of my estate to X.” At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T’s lifetime, Bates has another child (D), and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates; by Bates’ three children, B, C and D; by Bates’ grandchild A Jr. and by X. Who takes Blueacre?

Answer 33

B, C, D, and A Jr.. Class gift rule: When there is a gift by will to a group of persons generically described as a class (“children,” “nephews” and “nieces,” etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.

Question 34

Lapse in Residuary Gift 19. “I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter.” Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, widower, is also survived by Bates, by Carter and by an only child Stephen. Who takes the residuary estate?  

Answer 34

1/2 Bates, 1/2 Carter UPC (majority) rule: If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. What if, in 19, it was T’s sister Carla who predeceased T leaving a child (Carla Jr.) who survived T? Andrews and Bates also survived T. THEN –> 1/3 each Andrews, Bates & Carla Jr.

Question 35

Hypothetical Will - Define and provide examples:

Specific devise or bequest:

Demonstrative legacy:

General legacy:

Residuary bequest:

Intestate property:

Answer 35

Specific devise or bequest: “I devise Blackacre [my 2010 Cadillac] to my son John.” How about “my car” or “all of my bank accounts”?

Demonstrative legacy: “I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.”

General legacy: “I give the sum of $10,000 to my daughter Donna.” Residuary bequest: “I give all the rest, residue, and remainder of my property to my wife, Agnes.”

Intestate property: When there is a partial intestacy for some reason (e.g., all of the residuary beneficiaries predecease the testator, and the case is not covered by the anti-lapse statute).

Question 36

Abatement 21. What if, in the above situation, T’s estate is partially insolvent? In what order are the gifts sacrificed to satisfy funeral expenses, expenses of administration, creditors’ claims?

Answer 36

Specific devise or bequest: Demonstrative legacy: General legacy: Residuary bequest: Intestate property: Start at the bottom (from intestate) and work up.

Question 37

Ademption 22. Same will provisions. Some years before her death T sold Blackacre, which was specifically devised to John. What is the effect on the devise to John?

Answer 37

John’s gift is adeemed—it fails. John takes nothing.

Question 38

Ademption. T’s will provided “I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.” T had sold her Acme stock and did not own any such stock at her death. Does ademption apply to the gift to Sarah?

Answer 38

No. Sarah has a demonstrative gift. Ademption does not apply to demonstrative gifts.

Question 39

Ademption - Common Law Rule

Answer 39

common law rule applied the doctrine of ademption to any case where the property specifically devised was not in the estate for any reason. At common law and in most states even today, T’s intent is deemed to be immaterial.

Question 40

Ademption - UPC - Intent & Statutory Provisions; Will executed before T declared incompetent: If specifically devised property is sold by conservator, or if condemnation award or insurance proceeds relating to the property are paid to the conservator? What result?

Answer 40

Under the UPC, T’s intent material (unlike common law doctrine of Ademption) and several statutory provisions apply to avoid ademption. On these facts - the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator’s disability has been adjudicated to have ceased and testator survives the adjudication by one year.

Question 41

Ademption - UPC - Will executed before T declared incompetent: If specifically devised property is sold by conservator, or if condemnation award or insurance proceeds relating to the property are paid to the conservator, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator’s disability has been adjudicated to have ceased and testator survives the adjudication by one year. A specific devisee has the right to the remaining specifically devised property and:

Answer 41

• Any balance of purchase price owing from purchaser when contract is still executory at T’s death. (At common law, equitable conversion would apply, and T would no longer own real property, but merely a claim to the remaining purchase price.) • Any amount of condemnation award for taking of the property, to the extent unpaid at T’s death. • Any amount of fire or casualty insurance proceeds unpaid at death. • Any real or tangible personal property acquired as a replacement for other similar property. • Property acquired as a result of a foreclosure of a security interest on specifically devised note. Example: T sells land for a note and leaves the note to B in his will. Later, T gets property in foreclosure of the note. B gets the property.

Question 42

Ademption - “I give and bequeath my Rembrandt painting to my daughter Dora.” The Rembrandt painting was incinerated in 2017. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?

Answer 42

No

Question 43

Ademption - T’s will leaves his “Buick automobile” to his son, James. Subsequently, T sells the Buick for $5,000 and purchases a new BMW convertible for $40,000 cash. Is James entitled to the BMW at T’s death?

Answer 43

Common law no, but UPC yes. Gets property acquired as a replacement for specifically devised property.

Question 44

Increases to Property After Will Execution 25. “I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon.” At his death T owned 200 shares of stock in Tax Shelters, Inc., consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation six months after the will was executed. How many shares does Simon take? (Under Common Law/UPC?)

Answer 44

Common law a. Stock splits: Simon gets all 200 shares if this was a stock split. b. Stock dividends: Simon takes only 100 shares if this was a stock dividend. UPC 200 in both cases. A specific devisee takes “any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options.”

Question 45

Increases to Property After Will Execution 26. “I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon.” After, Tax Shelters was acquired by Ling-Temco-Vought, and as a part of the merger each shareholder was given one share of LTV for every two shares of Tax Shelters, Inc. At T’s death he owned 50 shares of LTV stock. Does Simon get the LTV stock?

Answer 45

Common law: No. Simon is adeemed. UPC: Yes. A specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.

Question 46

Special Rules for Bequests of Securities 27. “I bequeath my 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker Company stock to B.” Thereafter T sells all of her Coronado stock and all of her Baker stock. What are A and B’s rights?

Answer 46

a. What are A’s rights? A’s gift is specific. So A is adeemed. b. What are B’s rights? B’s gift is not specific. Executor will buy shares to fund the gift.

Question 47

Exoneration of Liens 28. “I devise Gatoracre to my son, Sylvester. I devise my residuary estate to my wife, Willette.” At T’s death Gatoracre is subject to a mortgage that is security for a note on which T was personally liable. Sylvester demands that the executor pay off the indebtedness (“exonerate the lien”) so that Gatoracre will pass to him free and clear of the encumbrance. Is he so entitled?

Answer 47

Common law (minority): Yes UPC (majority): No. A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. Moreover, a general direction in the will to pay debts does not show such an intent.

Question 48

Latent Ambiguity 29. “I give $5,000 to my nephew, John Paul Jones.” At the time T executed the will he had two nephews whose names were James Peter Jones and Paul Frederick Jones. T had never met nor corresponded with either nephew, and no nephew named John Paul Jones ever existed. Who takes the $5,000?

Answer 48

This is a latent ambiguity. Extrinsic evidence is admissible to clear up a latent ambiguity. Gift fails if evidence doesn’t exist.

Question 49

Mistake 30. “I give $5,000 to my nephew, John Paul Jones.” Suppose T had a nephew named John Paul Jones, whom he hadn’t seen for ten years. After T’s death, Paul Frederick Jones comes in and says, “There’s been a terrible mistake! T told me on numerous occasions that he intended to, and that he had, left a legacy for me in the will.” The stenographer who typed the will says “I goofed. I have the notes T gave me, from which I typed the will, and they show clearly that the legacy was supposed to have been given to Paul Frederick Jones.” Is this evidence admissible?

Answer 49

a. Most states: No. Plain meaning rule: Can’t disturb plain meaning of will with extrinsic evidence. b. UPC states: Yes. A court may reform the terms of a will, even if unambiguous, to conform the terms to the testator’s intent if it is proved by clear and convincing evidence that both the accomplishment of the testator’s intent and the terms of the will were affected by a mistake of fact or law. In determining the testator’s original intent, the court may consider extrinsic evidence even though the evidence contradicts an apparent plain meaning of the will.

Question 50

Common Intestacy Rules A. DECEDENT SURVIVED BY SPOUSE 1. If survived by spouse but not by issue or parent entire estate 2. If survived by spouse and issue all of whom are also issue of spouse entire estate 3. If survived by spouse and issue at least one of whom is not issue of spouse

Answer 50

1. If survived by spouse but not by issue or parent – entire estate 2. If survived by spouse and issue all of whom are also issue of spouse —-entire estate 3. If survived by spouse and issue at least one of whom is not issue of spouse, the spouse is commonly given a fixed amount off the top and a fraction of any excess. For example, under the UPC, the spouse takes the first $100,000 and one half of any excess.

Question 51

Intestacy Rules - B. SHARE NOT GOING TO SPOUSE (OR ALL OF ESTATE IF NO SPOUSE)

Answer 51

1. All to issue, if any. 2. If no issue, to parents or survivor. 3. If no issue or parents, to parents’ issue. C. MAJORITY RULE: Issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation.

Question 52

Intestate Rules -

C. MAJORITY RULE: Issue take per capita (equally) if all are of same degree of relationship; otherwise they take by representation.

Example 1 - How much do each take? (1/4 to each child)

Example 2 - How much do each take?

Answer 52

Example B

a. Most states: (Per capita with representation):   each to A and B 1/8 each to C-1 and C-2 1/12 each to D-1, D-2 and D-3
b. UPC & modern trend (Per capita at each generation level): A & B 1/4; C-1, C-2, D-1, D-2, D-3 1/10

Example 3: Same as Example 2 except A and B also predeceased

a. UPC (majority) rule: 1/6 to each grandchild
b. A few states (strict per stirpes):

A-1 1/3

C-1 & C-2 1/6

D-1, D-2, D-3 1/9

Question 53

MEANING OF PROBATE ESTATE

The intestacy statute applies only to the “probate estate.” What does that mean? What does it include?

Answer 53

This is the estate that could have been controlled by a will had T executed one. It does not include life insurance, property held in trust, right of survivorship property, securities or bank accounts registered in payable on death (POD) or transfer on death (TOD) form or property T did not own at death.

Question 54

Intestacy - Nonmarital Children

31. Frank gets Maude pregnant. After the child (Cliff) is born, Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff.
    a. If Maude dies intestate, can Cliff inherit from Maude? Yes
    b. Assume instead that Frank dies intestate. Can Cliff inherit from Frank?
    c. Assume, instead, that Steve dies intestate. Can Cliff inherit from Steve?

Answer 54

• a. If Maude dies intestate, can Cliff inherit from Maude?* Yes
• b. Assume instead that Frank dies intestate. Can Cliff inherit from Frank?*

No unless . . .

• Frank marries Maude; or
• adjudication of paternity before or after Frank’s death.

c. Assume, instead, that Steve dies intestate. Can Cliff inherit from Steve?

No unless adoption by estoppel (unperformed agreement to adopt)

Question 55

Intestacy - Adopted Children

Frank gets Maude pregnant. After the child (Cliff) is born, Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff. Shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.

a. If Mr. or Mrs. Anderson dies intestate, can Cliff inherit from them?
b. If Cliff dies intestate, can Mr. or Mrs. Anderson inherit from him?
c. If Maude dies intestate, can Cliff inherit from her?

Answer 55

a. If Mr. or Mrs. Anderson dies intestate, can Cliff inherit from them? Yes
b. If Cliff dies intestate, can Mr. or Mrs. Anderson inherit from him? Yes
c. If Maude dies intestate, can Cliff inherit from her? No

Qualifications found in UPC and some other states:

• Stepparent adoption (e.g., W marries H1 and has a child C. H1 dies and W marries H2 who adopts C. C continues to inherit from H1’s family.)
• Orphan adoption (both natural parents die and C is adopted by close family member. C continues to inherit from other family members.)

RELATED ISSUE: Adopted persons are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession.

Question 56

Simultaneous Death

33. Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher died intestate. Is Lulu an heir for purposes of intestate distribution?

Answer 56

a. Original Simultaneous Death Act: Yes. If Rancher and Lulu die simultaneously, Rancher’s estate is distributed as if Lulu predeceased. But if there is evidence Lulu survived Rancher (even for a few minutes) then she takes as Rancher’s heir.

b. Revised Simultaneous Death Act (120 hour rule): No. When passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days). (UPC)

Question 57

Simultaneous Death

34. Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher had a will that left “all of my estate to Lulu.” If the jurisdiction has the Revised Simultaneous Death Act, does Lulu take under the will?

Answer 57

No. She has to survive 120 hours in order to take.

COMPARE: What if will provided: “I leave all my estate to Lulu if she survives me by two days?”

Yes, since will only requires two days.

b. Suppose Lulu was the named beneficiary of Rancher’s life insurance policy. Would Lulu be entitled to the insurance proceeds?

No. She didn’t survive for 120 hours.

c. Suppose Lulu and Rancher owned Redacre as joint tenants.

No. Neither survived by 120 hours so 1/2 goes through each tenant’s estate.

Question 58

Simultaneous Death

34. Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher had a will that left “all of my estate to Lulu.” If the jurisdiction has the Revised Simultaneous Death Act -
    b. Suppose Lulu was the named beneficiary of Rancher’s life insurance policy. Would Lulu be entitled to the insurance proceeds?

Answer 58

No. She has to survive 120 hours in order to take.

COMPARE: What if will provided: “I leave all my estate to Lulu if she survives me by two days?”

Yes, since will only requires two days.

b. Suppose Lulu was the named beneficiary of Rancher’s life insurance policy. Would Lulu be entitled to the insurance proceeds?

No. She didn’t survive for 120 hours.

c. Suppose Lulu and Rancher owned Redacre as joint tenants.

No. Neither survived by 120 hours so 1/2 goes through each tenant’s estate.

Question 59

Simultaneous Death

34. Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher had a will that left “all of my estate to Lulu.”
    c. Suppose Lulu and Rancher owned Redacre as joint tenants. Does Lulu take?

Answer 59

c. Suppose Lulu and Rancher owned Redacre as joint tenants.

IF RSDA - No. Neither survived by 120 hours so 1/2 goes through each tenant’s estate.

a. Original Simultaneous Death Act: Yes. If Rancher and Lulu die simultaneously, Rancher’s estate is distributed as if Lulu predeceased. But if there is evidence Lulu survived Rancher (even for a few minutes) then she takes as Rancher’s heir.
b. Revised Simultaneous Death Act (120 hour rule): No. When passage of title to property depends on priority of death, absent a provision in the governing instrument to the contrary, a person is deemed to have predeceased the decedent unless the person survives the decedent by 120 hours (5 days). (UPC)

Question 60

Advancement

35. H, a widower, gives his daughter A land worth $12,000 on A’s birthday and tells his other two kids (B and C) that they will receive similar gifts when they reach twenty-five. H dies before the other gifts are made. H dies intestate leaving an estate worth $78,000. At H’s death A’s land is worth $15,000. How should H’s estate be distributed?

(Remember - Doctrine of advancement applies to intestate estates.)

Answer 60

Common law (minority) rule: Presumption of Advancement: Any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate’s estate.

Majority Rule – UPC: Lifetime gift presumptively not advancement of intestate share or in satisfaction of gif tunder will

Exception: Lifetime gift considered an advancement IF:

• 1. Intent is shown by a contemporaneous writing by donor (or will provision in case of satisfaction) or
• 2. There is a written acknowledgment by the done

If it were an advancement: H’s estate is “brought into hotchpot”

(78 + 12 = $90,000)

The $90,000 would be divided equally three ways, of which A is deemed to have already received $12,000 of her share.

RESULT: A gets $18,000, B takes $30,000 and C takes $30,000.

Question 61

Doctrine of advancement applies to intestate estates. A companion doctrine called satisfaction applies to testate estates. What is it?

Answer 61

UPC (majority) rule: A lifetime gift is not a prepayment of any interest under a will unless: (i) the will provides for this treatment, (ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise or (iii) the devisee acknowledges in writing that the gift is in satisfaction.