-
Wills and Trusts
Law School Legends Professor Stanley M. Johanson
I. INTESTATE SUCCESSION A. BASIC PRINCIPLES AND TERMINOLOGY.
Probate (literal translation: to prove): Court proceeding in
which:
(i) it is judicially determined that the decedent left a validly
executed will (or that the decedent died without a will and his
intestate heirs are determined), (ii) a personal representative
(called an executor if named in a will, an administrator if
appointed by the court from a statutory list of preferred next
of kin) is appointed to administer the decedent's estate and wind
up the decedents affairs, and
(iii) letters testamentary (if an executor) or letters of
administration (if an administrator)
are issued by the court, showing the personal representatives
authority to represent the estate in dealing with third parties.
The probate estate does not include (and wills and the intestate
succession rules do not apply to) non-probate transfersinterests
that pass by right of survivorship (e.g., a joint and survivor bank
account) or under the terms of a contract (e.g., life insurance
proceeds or employee death benefits).
Strictly speaking, you probate the decedents will and then you
administer the decedents estate.
However, the entire process is commonly referred to as the
probate process, involving a probate administration. While it may
not be technically correct, this terminology is widely used.
The principal duties of a personal representative are to:
(i) take possession and control of the assets that comprise the
estate, (ii) give notice to creditors and pay creditors claims,
(iii) satisfy the tax authorities, and
(iv) distribute the remaining estate to the will beneficiaries
or heirs.
A person who executes a will is called the testator. Persons who
take by intestate succession are called heirs. Persons who take
under a will are called beneficiaries (or devisees, or legatees).
At common law, one devised real property and bequeathed money or
personal property. This distinction is no longer made. A will can
say I devise, I bequeath, I give, or I leaveall of these terms mean
the same thing, and can be employed to make testamentary gifts of
both real property and personal property.
-
Page 2 WILLS AND TRUSTS LAW SCHOOL LEGENDS
Residuary estate is the estate of a testator that remains after
all debts, taxes and administration expenses have been paid, and
after all specific gifts and cash legacies made by the will have
been satisfied. Under most wills, the residuary beneficiary is the
testators preferred taker. (E.g., "I give all of the rest, residue
and remainder of my estate to my wife Wendy.")
B. WHEN INTESTATE DISTRIBUTION RULES APPLY.
The intestate distribution rules (sometimes referred to as the
laws of descent) apply when:
(i) decedent left no will (or decedents will was not validly
executed);
(ii) the will does not make a complete disposition of the estate
(resulting in a partial intestacy), or
(iii) an heir successfully contests the will on the ground of
lack of testamentary capacity or
undue influence, and the will is denied probate. In several
states, the intestacy rules are also involved in questions
involving a pretermitted child (born or adopted after the will was
executed) or an omitted spouse (testator married after will was
executed.)
C. INTESTATE SHARE OF SURVIVING SPOUSE
Uniform Probate Code (original 1969 version), which has been
enacted in a number of states, has a different rule depending on
whether the decedent's descendants were of this marriage or of an
earlier marriage. Under the original UPC, the surviving spouse's
intestate share is:
Survived by spouse but not by descendants or parents: ALL.
Survived by descendants, all of whom are descendants of
surviving spouse: THE FIRST $50,000 PLUS OF ANY BALANCE.
Survived by descendants, some of whom are not descendants of
surviving spousethe second marriage situation: ONE-HALF.
Survived by spouse and no descendants but by one or both
parents: THE FIRST $50,000
PLUS OF ANY BALANCE.
Revised Uniform Probate Code (1990 version) substantially
increased the intestate share of a surviving spouse, reflecting a
policy that is more in line with the dispositions that most spouses
make if they write wills. The Revised UPC provisions also reflect
that divided families are encountered more frequently in our
society.
Survived by spouse but not by descendants or parents: ALL.
Not survived by descendants, but survived by a parent: THE FIRST
$200,000 PLUS OF ANY BALANCE.
Survived by descendants, all of whom are descendants of
surviving spouse, and surviving spouse has no descendants from an
earlier marriagethe one-marriage situation: ALL.
Survived by descendants, all of whom are descendants of
surviving spouse, but surviving spouse has one or more descendants
who are not descendants of the decedent: THE FIRST $150,000 PLUS OF
ANY BALANCE.
Survived by descendants, some of whom are not descendants of
surviving spouse: THE FIRST $100,000 PLUS OF ANY BALANCE.
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 3
1. Herman and Winnie are married, and they have two children (Al
and Betty). Winnie has a
child Carol) by her first marriage.
H-1 Winnie Herman Carol Al Betty a. If Herman dies intestate
survived by Winnie and the three children, what is Winnies
intestate share: Under the original (1969) Uniform Probate Code?
Under the Revised (1990) Uniform Probate Code? b. If Winnie dies
intestate survived by Herman and the three children, what is
Hermans
intestate share: Under the original (1969) Uniform Probate Code?
Under the Revised (1990) Uniform Probate Code? D. INHERITANCE BY
DESCENDANTS.
The Probate Codes of a few states use the term "issue"
throughout. The terms issue and descendants are synonymous, and
include lineal descendants (children, grandchildren, etc.) by blood
or adoption. In making a distribution among descendants, the
literal translation of per stirpes is by the roots, and means one
share for each line of descendants. The literal translation of per
capita is by the head, and means one share for each person.
-
Page 4 WILLS AND TRUSTS LAW SCHOOL LEGENDS
2. Martha, a widow, dies intestate, survived by the family
members listed below. What intestate distribution?
Martha Al Ben Carol Donna C-1 C-2 D-1 D-2 D-3
At common law, and in a small number of states today, the
distribution rule is strict per stirpes (also called classic per
stirpes), under which the shares for each line of descendants are
always divided at the first generational level, regardless of
whether there are any living takers at that level, and then one
share for each family line. Thus in the above family tree:
Al: ________ Ben: _______ C-1 and C-2: ________ D's three
children: ________
The distribution rule under the original UPC and in most states
is modern per stirpes, usually described as per capita with
representation ("per capita at the first level, then by
representation"). Under this distribution scheme, you cut the
shares at the first generational level at which there are living
takers, and then one share for each family line.
Al: ________ Ben: _______ C-1 and C-2: ________ D's three
children: ________
The distribution rule under the Revised UPC (also adopted in
several non-UPC states) is per capita at each generation. Under
this rule, you make the initial division of shares (with one share
for each line of descendants) at the first generational level at
which there are living takers. Each living descendant in that
nearest generation takes one share. Shares of deceased persons at
that generational level are combined and then divided equally among
the takers at the next generational level, and so on. As a result,
persons in the same degree of kinship to the decedent (e.g.,
grandchildren who are first cousins) always take equal shares.
Under this distribution rule, the shares would be:
Al: _________ Ben: _________ C-1 and C-2: __________ D's
children: __________ E. INTESTATE DECEDENT NOT SURVIVED BY SPOUSE
OR DESCENDANTS (1) All to parents or to surviving parent (majority
rule). In nearly all states, collateral kin
(brothers and sisters) never inherit if an intestate decedent is
survived by a parent.) (2) If not survived by parents, to
descendants of parents. When inheritance is by collateral kin
(e.g., brothers, sisters, and the descendants of deceased
brothers and sisters), the states apply the same distribution rules
(either strict per stirpes, or per capita with representation, or
per capita at each generation) that they apply to inheritance by
descendants.
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 5
(3) The UPC and most states have abolished the distinction made
at common law between collateral kin of the whole blood and of the
half blood: Half-sisters (sisters who shared one common parent with
the decedent) take the same share as sisters of the whole
blood.
(4) If not survived by parents or issue of parents: to maternal
grandparents (or surviving
grandparent), or if neither maternal grandparent is living,
their descendants; to paternal grandparents (etc. etc.) in same
manner. If no maternal grandparents or their descendants, all to
paternal grandparents or their descendants (and vice versa).
(5) While most states impose no limit on the degree of kinship
needed to take as an heir, the
Uniform Probate Code and several non-UPC states have enacted
so-called "no laughing heir" statutes: There is no inheritance by
kin more remotely related than grandparents or descendants of
grandparents. Instead, the estate escheats to the state.
F. ADOPTED CHILDREN. Adopted children and their descendants have
full inheritance rights
from the adoptive family (and vice versa), and are treated in
all respects the same as natural children.
General rule: Once a child has been adopted by a new family, the
child has no inheritance rights from the natural parents or their
kin. (This is consistent with the law and policy of most states,
under which adoption records are sealed, and an adopted child has
no right to learn the identity of her natural parents.) Exception:
Where child is adopted by spouse of a natural parent. (E.g.,
Clyde's father dies; mother remarries, and second husband adopts
Clyde. Clyde has inheritance rights from natural mother and
adoptive fatherand (in nearly all states) from the deceased natural
fathers kin as well.)
G. NONMARITAL CHILDREN. Constitutional litigation in 1970s and
1980s expanded the rights
of nonmarital children. As a result, in most states a nonmarital
child can inherit from natural father if [the acronym is PAPfor
Pappy]:
-- Paternity suit: The man was adjudicated to be the father in a
paternity suit; or -- Acknowledged paternity: The man acknowledged
in writing that he was the father; or -- Probate proceedings: After
the man's death, he is proved to have been the father of the child
in the probate proceeding by clear and convincing evidence.
H. LIFETIME GIFTS TO HEIR OR WILL BENEFICIARY 3. Mary gives
Blackacre (worth $60,000) to her son Al on Al's 35th birthday,
orally telling her
other sons (Ben and Chris) that they will receive similar gifts
when they reach 35. Mary dies intestate two years later without
having made gifts to Bill and Chris. She left an estate valued at
$300,000; what distribution?
Common law: A lifetime gift to a child (or other descendant) was
presumptively an advancement (advance payment) of the child's
intestate share, to be taken into account in distributing the
intestate estate at death. (Presumption was that a parent would
want to treat all children equally.) Thus if Al wanted to share in
the inheritance, unless the advancement presumption were rebutted
it would be treated as a [$300,000+ $60,000 =] $360,000 estate to
be divided three ways. Each child's share would be $120,000, with
Al
-
Page 6 WILLS AND TRUSTS LAW SCHOOL LEGENDS
already having received $60,000 of his share. (In most states,
the advanced property is valued at its date-of-gift value for this
purpose.)
UPC and majority rule: A lifetime gift to an heir is not an
advancement unless (i) declared as such in a
_______________________________________ by donor; or (ii)
acknowledged as such in a ____________________________________ by
donee. Therefore, under the majority rule distribute Marys
estate:
In most states, the same rules apply to lifetime gifts made to a
beneficiary named in a previously executed will (called the
doctrine of satisfaction of legacies), as where a testator executes
a will bequeathing $25,000 to her nephew Norman, and thereafter
gives Norman $10,000 cash.
UPC and majority rule: A gift to a beneficiary named in an
earlier will is not treated as in satisfaction of legacy unless
(i) declared as such in a contemporaneous writing by the donor,
or (ii) acknowledged as such in writing by the donee, or
(iii) the will provides for reduction of legacies by any
lifetime gifts.
Since there is no writing, we ignore the lifetime gift. Norman
takes the full $25,000 under the will.
I. DISCLAIMER BY HEIR OR BENEFICIARY 4. Joe's will bequeaths his
$1,500,000 estate "to my children in equal shares." Joe is
survived
by two children: Sue and Bob. Sue, a partner in a large New York
law firm who has two children, wants to disclaim her interest in
her father's estate. What must Sue do to make an effective
disclaimer?
All states recognize that no one can be compelled to be a
beneficiary or heir against her will. An intestate heir, will
beneficiary, beneficiary of a life insurance policy or employee
benefit plan, or any other interest in property can disclaim the
interest, in whole or in part. A disclaimer also can be made on
behalf of a minor or incapacitated person by a guardian, or the
personal representative of a deceased person. A disclaimer, once
made, is irrevocable. To be a valid disclaimer:
#1. Must be in writing, signed and (in most states) notarized.
#2. Must be filed within _________________* after the decedent's
death.
* Under the Uniform Probate Code, a disclaimer must be made
within a
reasonable time. However, to be valid for tax purposes a
disclaimer must be made within 9 months, and most disclaimers are
made for tax purposes.
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 7
[For irrevocable inter vivos trusts, disclaimer must be made
within 9 months of the transfer; the trust is read as through the
disclaimant was dead when trust was created.
#3. Disclaimer can be partial ("I disclaim one-half of the
interest bequeathed to me").
#4. A beneficiary or heir cannot disclaim after accepting an
interest or its benefits. (Essentially an estoppel principle.)
#5. Disclaimant cannot exercise dominion by attempting to direct
who takes by reason of
the disclaimer. ("I disclaim, and I want the interest to go to
my husband Horace.") If Sue makes an effective disclaimer, how
should T's estate be distributed?
J. DEATHS IN QUICK SUCCESSION 5. Mother and Sonny, riding in a
car, are hit broadside by a train. Both die instantly. Mother
did not leave a will. For purposes of distributing Mother's
intestate estate, is Sonny an heir....
________ If the controlling law is the Uniform Simultaneous
Death Act [USDA]?
Uniform Simultaneous Death Act: When title to property depends
on order of deaths and there is no sufficient evidence that the
persons have died otherwise than simultaneously, the property of
each passes as though he or she survived (absent contrary
provision).
Intestacy: As though the intestate survived and the heir
predeceased. Wills: Suppose, instead, that Mother left a will
devising "all my property" to Sonny.
Mother's estate is distributed as though the testator survived
and the beneficiary predeceased. (This would invoke the lapsed gift
doctrine and the anti-lapse statute, discussed infra.)
Insurance proceeds, Individual Retirement Accounts [IRAs], etc.:
As though insured [or IRA account owner] survived and beneficiary
predeceased.
If joint tenants with right of survivorship or tenants by the
entirety die simultaneously: is distributed through As estate as
though A survived B, and is distributed through Bs estate as though
B survived A. Reason: Simultaneous deaths prevent operation of
right of survivorship. In effect, property passes as though a
tenancy in common were involved.
5a. Same facts and same tragic accident except that, while
Mother was pronounced dead at the
scene of the accident, Sonny died at a nearby hospital 71
minutes later. Mother did not leave a will. For purposes of
distributing mother's intestate estate, is Sonny an heir....
________ If the controlling law is the Uniform Simultaneous
Death Act?
-
Page 8 WILLS AND TRUSTS LAW SCHOOL LEGENDS
________ If the state has enacted the Uniform Probate Codes
120-hour rule?
The 120-hour rule also applies to wills. A will beneficiary who
fails survive the testator by 120 hours is deemed to have
predeceased the testator (absent contrary provision). This would
invoke that lapsed gift rule and anti-lapse statute (discussed
infra).
II. EXECUTION OF WILLS
A. REQUIREMENTS FOR A VALIDLY EXECUTED WILL. To have capacity to
make a will, the testator (T) must be 18 years old. The rules
governing will
execution vary from state to state. The Uniform Probate Code
(UPC) requires: #1. Signed by the testator (or someone at T's
direction and in her conscious presence
proxy signature); #2. Testator must sign the will (or
acknowledge his earlier signature or acknowledge the
will as his will) in each witnesss presence; #3. Two attesting
witnesses, each of whom witnessed either Ts signing of the will or
T's
acknowledgment of his earlier signature or of the will; and #4.
Witnesses must sign within a reasonable time after witnessing
either T's signing of the
will, or Ts acknowledgment of her earlier signature or of the
will. A number of states additionally require that #5. Each witness
must sign the will in the testators presence. (The UPC
notwithstanding, this is the majority rule.) A few states impose
one or more of the following additional requirements: -- that the
testator sign "at the foot or end" of the will. -- that the
witnesses know they are witnessing a will, as distinguished from
some other
document (called the "will publication" requirement). -- that
witnesses sign in each other's presence. Codicil (later amendment
or supplement to a will) must be executed with the same
formalities. 6. Tom types a will that leaves all of all his
property to his sister Sue and his neighbor Nell in
equal shares. The will, which names a friend as executor,
contains no attestation clause; below the signature line for the
testator the will simply provides "Witnesses" and has two signature
lines. Tom takes the will across the street to his neighbor Nell
and asks Nell to "witness my will." Nell signs on the first witness
line, then Tom signs; Tom's signature is barely legible because of
an arthritic condition. Tom then takes the will to his neighbor
Oscar and asks: "Would you mind witnessing this legal document for
me? It needs two signatures besides mine." Tom proffers the will
with his signature showing. Oscar signs, thinking he is witnessing
a power of attorney. After Toms death the will, which is undated,
is offered for probate. Should it be admitted?
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 9
_______ Does it matter that the will is not dated? _______ Does
it matter that one of the witnesses signed before Tom signed? The
exact order of signing is not critical when execution (will
signing) ceremony is
_________________________________________________________________
(But where T forgot to sign when witnesses signed, and added his
signature three days later in the same witnesses' presence, will
denied probate; not a contemporaneous transaction. Witnesses are
attesting witnesses and must attest to T's signature when they
sign.)
_______ Does it matter that Tom's signature is barely legible?
_______ Does the fact that Nell is a beneficiary invalidate either
the will or the bequest to Nell?
Minority rule: Interested witness situation doesn't affect
validity of a will, but witness-beneficiary loses legacy (subject
to exceptions). However, the UPC and most states have abolished the
interested witness rule. "The signing of a will by an interested
person does not invalidate the will or any provision of it."
________ Does it matter that Oscar did not know that he was
witnessing a will? (majority rule) ________ Does it matter that
Nell and Oscar didn't sign in each other's presence? (majority
rule) ________ Does it matter that Toms will did not contain an
attestation clause?
Attestation clause, which appears below the testator's signature
line and above the witnesses' signature line, recites the elements
required for due execution: "On the above date testator declared to
us that the foregoing instrument was her will and she asked us to
serve as witnesses thereto. She then signed the will in our
presence, we being present at the same time. We now sign the will
as attesting witnesses in testator's presence and in the presence
of each other."
-
Page 10 WILLS AND TRUSTS LAW SCHOOL LEGENDS
Value of an attestation clause: such a clause is:
An attestation clause can be important in two situations:
(1) Witness with bad memory. "Probate of a will does not turn on
memory of the attesting
witnesses." (2) Hostile witness.
Self-proving affidavit procedure now available in nearly all
states recognizes that most probates are harmonious, nonlitigious
affairs in which no one is challenging the validity of the will's
execution. Can be executed at any time after the will is signed,
but invariably is signed at the same ceremony. T and witnesses sign
will, then T and witnesses execute sworn affidavit before notary
public. Affidavit recites statements witnesses would testify to in
open court (T was over age 18; witnesses signed in T's presence; in
witnesses' opinion T was of sound mind, etc.). Unlike an
attestation clause (which merely corroborates the witnesses'
testimony), the affidavit serves the same function as a deposition
or interrogatory. It is a total substitute for live testimony of
the attesting witnesses in open court.
7. Tillie downloads a will form from the Internet, and carefully
fills in the blanks by typing in
the names of the beneficiaries, executor, etc. After she has
completed the form, Tillie asks Norman, a notary public, to assist
her in signing the will. Tillie signs; then Norman signs and
affixes his notarial seal, overlooking the fact that there are two
signature lines for witnesses. Tillie dies two years later.
NO Can Tillies will be admitted to probate in most states, given
that it has only one witness?
YES Can Tillies will be admitted to probate in a state that has
enacted the Revised Uniform Probate Code?
Under the Revised UPCs dispensing power statute (also known as
the harmless error statute), the probate judge can excuse full
compliance with the formalities required for execution of a will if
there is clear and convincing evidence that the testator intended
the document to be her will.
B. WHAT CONSTITUTES PRESENCE? A number of states require that
the witnesses must sign
in testator's presence, and the UPC requires that the testator
either sign the will or acknowledge his signature or the will in
each witness's presence. What constitutes "presence"?
8. T is confined to a hospital with a contagious disease, his
bed hidden by a heavy vinyl screen.
The will is handed to T at a point when the two witnesses are
standing in the doorway to the room, not in T's line of sight
because of the screen. From behind the screen T says, "This looks
all right; where do I sign?" After T signs the will, a nurse
carries the will to the doorway where the two witnesses sign under
the attestation clause; T cannot see either of them sign. Was the
will validly executed?
Under the line of sight ("scope of vision") test (minority
rule): NO Witnesses must be in testator's line of sight. Testator
does not have to see the witnesses sign, but the witnesses must be
within the uninterrupted range of testator's vision when they sign,
so that testator could have seen them sign if he had looked.
(Swivel chair case: If testator,
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 11
staring out window when witnesses signed on a table behind her,
had turned around in her swivel chair, she could see the
witnesses.)
Under the conscious presence test (majority rule): YES It is not
necessary that testator should actually be able to see the
witnesses when they sign. They are in his presence whenever he is
so near to them that he is conscious of where they are and what
they are doing, and he could see them with a slight physical effort
on his part. (e.g., by peeking around that vinyl screen.)
BUT where (after testator and W-1 signed) the attorney took the
will to an adjoining room where W-2 signed it, W-2 did not sign in
testator's presence under either test.
9. Mel was in a hospital's Intensive Care Unit, having suffered
a heart attack. A will was prepared for Mel and was brought to the
hospital room along with two of Mel's neighbors who were to serve
as witnesses to the will. The lawyer read the will aloud to Mel,
who said "That's just fine; where do I sign?" Mel signed the
willbut immediately thereafter suffered a massive seizure and
collapsed back on the bed. Paramedics rushed in and, in the
presence of the stunned neighbors, worked alongside two nurses in
administering CPR to Melto no avail. About seven minutes later, Mel
was pronounced dead. At that point, the lawyer said to the
neighbors, "well, that's too bad; but as long as you're here you
might as well sign the will as witnesses," which they did. Is Mel's
will admissible to probate?
NO Majority rule: Witnesses must sign in the testator's
conscious presence. ______ Uniform Probate Code: C. ATTORNEY
LIABILITY TO WILL BENEFICIARIES FOR NEGLIGENCE 10. In a state that
requires that the attesting witness must sign the will in the
testators presence,
Larry Lawyer prepares a will for Tina and supervises the will's
execution. The will is signed by two witnesses, but one of them did
not sign the will in Tina's presence. As a result, the will is
denied probate, and Tina's estate passes by intestacy to Tina's
heirs. Do the intended will beneficiaries have a cause of action
against attorney for negligence?
Minority rule: NO because there is no privity of contract. Under
the minority rule, an attorney's duty runs only to: Majority rule:
_______ because ______________________________________. Under the
majority rule, attorney's duty also runs to:
-
Page 12 WILLS AND TRUSTS LAW SCHOOL LEGENDS
D. HOLOGRAPHIC WILLS 11. Winkie writes a document in her own
handwriting that reads: "July 24, 1998. I, Winkie
Waters, declare that this is my last will. I leave all my
property to the Morris Crippled Children's Home." The writing is
not witnessed; is it admissible to probate?
"The UPC and about half the states recognize holographic
willshandwritten and signed but unwitnessed wills. In these states,
upon proof that the will was wholly in Winkies handwriting, it is
admissible to probate as a holographic will."
But all states that allow holographic wills require that such
wills be signed by the testator. Was this will signed by
Winkie???
"However, many states do not recognize holographic wills. Except
(in a few states) for persons serving in the armed forces or
mariners at sea, all wills must be in writing and attested by two
witnesses. In those states, the handwritten, unwitnessed document
is not admissible to probate."
Important note: If the facts of ANY Wills question include a
handwritten letter, note or memorandum signed by the testator, you
must discuss majority and minority rule (as above); whether it can
be given effect as a holographic will (or holographic codicil to an
attested will).
E. CONDITIONAL WILL 12. Ted writes a will that is properly
signed and witnessed: "I am going on a mountain-climbing
expedition to the Himalayas. If anything happens to me on the
trip, I leave all of my property to my good friend, Alice Adams."
Ted climbs Mt. Everest that summer, returns from the trip in July,
and dies three years later without having changed his will. Does
Alice take Ted's estate under the will?
Was this a conditional will, meaning that probate should be
denied because the condition did not occur (i.e., nothing happened
to Ted on his trip)?
Or did Ted's reference to the dangerous journey he was about to
undertake merely reflect the motive or inducement for making a
will? (i.e., the dangers he faced on the trip prompted him to think
of the possibility of death and the need for a will.)
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 13
III. REVOCATION OF WILLS A. WHAT CONSTITUTES A VALID REVOCATION.
A will can be revoked only:
(1) by a subsequent testamentary instrument, executed with
appropriate formalities, or (2) by physical act (burning, tearing,
canceling, obliterating, or other act of destruction).
Under the Revised UPC, the dispensing power (harmless error)
statute applicable to the execution of wills also applies to
attempted revocations. The probate court can relax the statutory
requirements, if there is clear and convincing evidence that the
testator intended to revoke her will.
13. Hobie's will is found among his papers after his death. At
the bottom of each page of the
three-page will is written, in T's handwriting, "This will is
VOID. Hobie Gates." YES Valid revocation by subsequent instrument
if the state recognizes holographic wills?
It's in his handwriting and signed; doesn't have to be on a
separate sheet of paper.
YES Valid revocation by subsequent instrument if the state has
enacted the Uniform Probate Codes dispensing power statute? We have
clear and convincing evidence that Hobie intended to revoke his
will.
________ Valid revocation by subsequent testamentary instrument
if the state does not recognize holographic wills (and has not
enacted the UPCs dispensing power statute)? ________ Valid
revocation by physical act? ________ Suppose Hobie had crossed out
his signature with an X. Revocation by
physical act? 14. The executed copy of Adam's will is in his
safety deposit box; a xerographic copy showing
all of the signatures is in Adam's desk at home. Adam destroys
the xerox copy with the intent to revoke his will. Valid revocation
by physical act?
________ Physical act must be:
-
Page 14 WILLS AND TRUSTS LAW SCHOOL LEGENDS
15. Ted calls his attorney on the phone and tells him, "Revoke
my will. I'll come down to your
office next Monday and write a new one, but for now I don't want
that old will." The attorney gets Ted's will out of the file, puts
a large X across each page, and then tears the will into twelve
pieces. He tells Ted, "I have destroyed your will. Be sure to come
in on Monday. We sure wouldn't like to have you die intestate. Heh,
heh." Ted is struck by lightning and is killed on Sunday. Was Ted's
will validly revoked?
________ Revocation by physical act by another person (proxy
revocation), must be: (1) ______________________________ and (2)
______________________________ 15a. But how can Ted's will in #15
be probated if it was destroyed???
______________________________________________________________________
(1) Proof of due execution (testimony of attesting witnesses) as in
any case. (2) Cause of will's nonproduction must be established.
(Must overcome
presumptions as to revocation set out below.) (3) Contents must
be substantially proved by copy of will or by testimony of
witnesses who have read the will or heard it read. B.
PRESUMPTIONS REGARDING REVOCATION.
(1) Where a will, last seen in testator's possession or under
his control, is not found after death, presumption is that the
testator revoked the will by physical act.
(2) Where a will, last seen in testator's possession or control,
is found mutilated after testator's death,
presumption is that the testator did the mutilating (i.e.,
revocation by physical act).
(i) Neither presumption arises if the will was last seen in the
possession of someone adversely affected by its contents. [Recent
case: Shortly after T's death, desk where will was located was
"tidied up" by one adversely affected by the will.]
(ii) Evidence is admissible to rebut the presumption of
revocation where will cannot be
found or is found in damaged condition. [E.g., will destroyed in
fire that killed testator.]
Where a will is executed in duplicate (two signed and witnessed
copies), both copies must be accounted for, or the reason for not
producing both copies must be explained.
16. Tim executes "my last will." Two years later, Tim executes
another "my last will." The
second will does not contain language of revocation, and does
not even mention the earlier will.
To the extent possible, you read the two instruments together.
The second "last will" is treated as a codicil to the first will,
and revokes it only to the extent of inconsistent provisions. But
if the second will is wholly inconsistent with the earlier will
(the first will gives "all my property to Al" and the second gives
"all my property to Betty," the first will is revoked by
implication.
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 15
Revocation of codicil to a will does not revoke the will, and
(majority rule) the part of the will that was modified or revoked
by the codicil is restored and takes effect as though the codicil
had never been written.
C. DEPENDENT RELATIVE REVOCATION
16. Teresa executes a will (Will #1) that bequeaths her estate
in trust: income to daughter Sally for life, remainder to Sally's
children. Teresa later types out a will (Will #2) that purports to
revoke Will #1 and leaves her estate outright to Sally. However,
Will #2 is signed by only one witness. Saying "this will is no good
now," Teresa destroys Will #1. Teresa dies; she is survived by
Sally and by her son Jack, whom she intended to disinherit. What do
we do, given that the second "will" is not a will (not validly
executed)?
DEPENDENT RELATIVE REVOCATION should be applied by the court.
"DRR" permits a revocation to be disregarded when the act of
revocation was premised upon, conditioned upon, dependent upon, a
mistake of law or fact as to the validity of another disposition
(here, Teresa's mistaken belief that she had validly executed Will
#2). Effect would be to disregard the revocation of Will #1 (the
will that was revoked based on a mistake of law) and permit its
probate. Rationale: It is better to disregard the revocation and
let Teresa's estate pass into a trust for Sally and her children
than to have half of her estate pass by intestate distribution to
Jack, whom Teresa intended to disinherit.
DRR is sometimes called the second best solution doctrine. [The
best solutiongiving effect to Teresa's intent by probating Will
#2isnt possible because it was not properly witnessed.] The
doctrine should be applied only if by disregarding the revocation
we come closer to what the testator tried but failed to do than
would an intestate distribution. If Will #1 said "outright to
Sally" and the improperly witnessed Will #2 said "outright to Hobie
Gates" and the other facts were the same, DRR would not be applied.
T's revocation of Will #1 (in effect, "I do not want Sally to
take") would be independent of her intent to make a new will in
favor of Hobie. To disregard the revocation of Will #1 would defeat
T's intent. On these facts, the conventional rules would be applied
and an intestate distribution would be made.
But if we disregard the revocation of Will #1 because the court
decides to apply DRR, how can we probate that will when Teresa has
destroyed it??? _______________________________.
D. CHANGES ON FACE OF WILL AFTER IT HAS BEEN SIGNED AND
WITNESSED
18. Elsie's typewritten will makes a number of legacies,
including:
"10. I give the sum of $5,000 to my nephew, Hobie Gates."
"11. I give the sum of $2,000 to my niece, Susan Slade.
Elsie decides to make some revisions in her will without the
assistance of an attorney. Using a marking pencil, she deletes
clause 10 and strikes the $2,000 in clause 11. Using a ball point
pen, Elsie writes in $5,000 above the crossed out $2,000, and
initials and dates the margin alongside these changes. Elsie dies
three years later. What is the effect of these changes on the face
of the will?
-
Page 16 WILLS AND TRUSTS LAW SCHOOL LEGENDS
________ Was the legacy to Hobie Gates validly revoked?
(Majority rule)
"A few states (Illinois, New York, Texas) do not recognize
partial revocation by physical act. However, in most states and
under the Uniform Probate Code, partial revocations by physical act
are valid."
________ Does Susan get the $5,000 legacy? (Overwhelming
majority rule)
Words added to a will after it has been signed and witnessed
are:
But under the Revised Uniform Probate Code (that harmless error
or dispensing power statute once again), the answer is YES. Susan
takes the $5,000 because we have clear and convincing evidence that
Elsie intended to modify the will by making the alteration.
________ When Elsie crossed out the "$2,000" before writing in
"$5,000," she revoked
the $2,000 legacy by physical act. Is Susan nonetheless entitled
to the $2,000?
________ Suppose that Elsie, after crossing out the $2,000,
writes in "$500" above it.
Does Susan get the crossed-out $2,000 under dependent relative
revocation?
[What was Elsie telling us when she crossed out "$2,000" and
wrote in "$500"?] ________ Suppose Elsie crossed out "$2,000" and
wrote in "$5,000" immediately before
the will was signed and witnessed. Are the changes valid?
IV. WILL BENEFICIARY DIES DURING TESTATOR'S LIFETIME A. LAPSED
GIFTS AND ANTI-LAPSE STATUTES
19. Tom executes a will that provides: "I devise Blackacre to my
son Sam, and I leave my residuary estate to my sister Mary." Sam
dies two years later, survived by his wife Wendy and his son
Junior. Sam leaves a will that devises "all my property" to Wendy.
Tom died two months ago, survived by Sams wife Wendy, Sam Jr., and
Toms sister Mary. Who takes Blackacre?
a. When a will beneficiary predeceases the testator, the gift
_____________________
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 17
b. Unless the gift is saved by the state's anti-lapse
statute.
These statutes vary in the scope of cases to which they apply.
Some anti-lapse statutes (e.g., Illinois) are very narrow in their
operation, and apply only when deceased beneficiary was a child or
other descendant of the testator. The UPC anti-lapse statute
applies when the predeceasing beneficiary was a grandparent or
descendant of a grandparent of the testator. Several statutes are
much even broader, and apply when the predeceasing beneficiary was
a relative of the testator (e.g., Massachusetts), or a relative of
the spouse or former spouse of the testator (e.g., California).
The predeceasing beneficiary must have been within the scope of
the statute, AND must have left descendants who survived the
testator. c. Therefore, Blackacre, devised to son Sam, passes to:
d. But what of the fact that Sam left a will devising "all my
property" to Wendy???
(Doesn't the anti-lapse statute save the gift for the deceased
beneficiary's estate?) e. What if Sam was not survived by
descendants, meaning that the anti-lapse statute
doesn't apply; who would take Blackacre? If a bequest or devise
lapses and the anti-lapse statute does not apply, the lapsed gift:
f. Suppose the will gave Blackacre "to my son Sam if he survives
me." ________ Would the anti-lapse statute apply in favor of Junior
(majority rule)? B. 120-HOUR RULE 20. In a state that has enacted
the UPCs 120-hour rule, Tim's will provides: "I give all of my
Microsoft common stock to my sister Sarah, and my residuary
estate to my mother Macree." Tim and Sarah are fatally injured an
automobile accident. Tim is pronounced dead at the scene of the
accident; Sarah dies two days later. Sarah is survived by her
daughter Donna and her mother; Sarah leaves a will that devises
"all my property" to the Red Cross. Who takes the Microsoft stock
under Tim's will?
________ Does the 120-hour rule apply to wills?
-
Page 18 WILLS AND TRUSTS LAW SCHOOL LEGENDS
A will beneficiary who fails to survive the testator by 120
hours is treated as if he predeceased the testator (absent contrary
will provision).
Therefore, the Microsoft stock passes:
20a. Same facts as in #20, except that Tim's will provides: "I
bequeath all of my Microsoft stock to my sister Sarah if she
survives me." Who takes the AT&T stock? ________ Does the
120-hour rule apply (majority rule)?
If a will contains language dealing explicitly with simultaneous
deaths, deaths in a common disaster, or requires that the devisee
survive the testator in order to take, 120-hour rule DOES NOT
APPLY.
C. LAPSE IN RESIDUARY ESTATE SURVIVING RESIDUARY BENEFICIARIES
RULE 21. "I bequeath my residuary estate in equal shares to my good
friend Hobie Gates, my neighbor
Bill Baker, and my son Charlie. I intentionally make no
provision for my son Stephen, as I have not seen him for fifteen
years." Hobie predeceases T, leaving a child (Hobie Jr.) who
survives T. T, a widower, is also survived by Baker, Charles and
Stephen. Who takes the residuary estate?
________ Does the anti-lapse statute apply in favor of Hobie
Jr.?
Who takes Hobie's one-third share of the residuary estate,
then?
If the residuary estate is devised to two or more persons and
the gift to one of them fails for any reason, the other residuary
devisees take the entire residuary estate, in proportion to their
interests in the residue (absent contrary will provision).
21a. What if, in #21, it was T's son Charlie who predeceased T,
leaving a child (Junior) who survived T? Hobie Gates and Bill Baker
survived T. Who takes Charlie's share of the residuary estate?
The anti-lapse statute ______________________________ the
"surviving residuary beneficiaries" rule.
D. CLASS GIFTS 22. Ted's will devises Blackacre "to the children
of my good friend, Joe Barnes," and devises his
residuary estate to his wife Rose. At the time the will is
executed, Joe has two children: Andy and Bill. After the will is
executed but before Ted's death, another child (Carol) is born
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 19
to Joe, and Andy dies survived by a son, Andy Jr. Then Ted dies
and his will is admitted to probate. Eighteen months later Joe has
another child, Donny. Who owns Blackacre?
Andy?
Class gift rule of construction: In a gift by will to a class of
persons ("children," "brothers and sisters," etc.) if a member of
the class predeceases the testator, the CLASS MEMBERS WHO SURVIVE
THE TESTATOR TAKE (absent a contrary will provision). Basis:
testator was "group-minded" in making the gift to the class and
wanted this group and only this group to share the property. [You
read the will, and determine the takers of the class gift, as of
testator's death.]
Compare gifts to individuals: Suppose Ted's will devised
Blackacre "in equal shares to Andy, Bill and Carol, the children of
my good friend Joe Barnes." Andy predeceases Ted. The one-third
share bequeathed to Andy lapses, and falls into the residuary
estate as undisposed-of property. The residuary beneficiaries would
own a share of Blackacre along with Bill and Carol.
Subject to: possible application of the anti-lapse statute.
E.g., if the disposition were "to the children of my son, Joe
Barnes," since the beneficiary who predeceased the testator was
within the degree of relationship covered by the anti-lapse
statute, and since he left a child who survived the testator, Andy
Jr. would take under the anti-lapse statute. The class gift rule
gives way to the anti-lapse statute when the predeceasing class
member is within the degree of relationship called for by the
anti-lapse statute.
Why is Donny excluded from sharing in the gift, when he's a
child of Joe Barnes???
Rule of convenience ["class closing" rule]: Rule of construction
used to define the takers of a class gift. The class is closed,
meaning that later-born class members do not share in the gift,
when some class member is entitled to a distribution. This is done
in order to determine the minimum share of each class member, so a
distribution can be made without the necessity of rebate. It's
called the Rule of Convenience because any other result would be
inconvenient.
Outright gift by will: the class closes at T's death.*
* Subject to gestation principle. Common law presumption: 280
days from conception to birth
V. CHANGES IN FAMILY AFTER WILL IS EXECUTED A. TESTATOR MARRIES
AFTER WILL IS EXECUTED 23. John executes a will that devises
Blackacre (valued at $100,000) to his son Sam and his
residuary estate to his sister Sue. A year later, John marries
Marsha; John dies ten months later, leaving a $600,000 estate
(which includes the value of Blackacre). John is survived by
Marsha, Sam, and his sister Sue. Who takes John's estate?
Under the omitted spouse statute found in many states, marriage
following execution of will: Omitted spouse takes
_______________________________
-
Page 20 WILLS AND TRUSTS LAW SCHOOL LEGENDS
UNLESS:
(i) It appears that omission was intentional; or
(ii) provision was made for the spouse by transfers outside the
will and it is shown that the transfers were intended in lieu of
testamentary gifts by testator's declarations, by amount of the
transfer, or otherwise. [E.g., John named Marsha as beneficiary of
a $100,000 life insurance policy; or as beneficiary of a revocable
trust.]
23a. Consider the same facts, except that the above events took
place in a jurisdiction that has enacted the Revised Uniform
Probate Code. Under the Revised UPC, the new spouse is entitled to
receive an amount equal to an intestate sharebut only as to that
portion of the estate not devised to testator's children from an
earlier marriage; i.e., children who were born before the marriage
(or their descendants) and who are not the surviving spouses
children. Thus:
$600,000 Johns estate -100,000 value of Blackacre bequeathed to
son Sam $500,000 amount subject to Marshas share as omitted
spouse
Reviewing the Revised UPCs intestate distribution rules (see p.
2), Marsha would be entitled to:
$100,000 first $100,000John was survived by descendants not
Marshas descendants +200,000 plus of balance $300,000 Marshas share
as omitted spouse
The remaining estate (property worth $200,000) would pass under
the wills residuary clause to sister Sue.
B. TESTATOR IS DIVORCED AFTER WILL IS EXECUTED 24. Hank is
married to Wendy, who has a child (Wookie) by her first marriage.
Hank writes a
will that devises Blueacre to Wendy, and the rest of his estate
to his sister Sue. The will names Wendy as executor "if she is
able; otherwise my brother Sam is to serve as executor." Two years
later Hank and Wendy divorce; then Hank dies without having changed
his will.
Who takes Blueacre? ____________________________________ Who
serves as executor? _________________________________
A final decree of divorce or annulment revokes all gifts and
fiduciary appointments in favor of former spouse. The will is read
and the estate is distributed (and fiduciaries are named) as though
former spouse predeceased the testator.
________ But doesn't the anti-lapse statute apply in favor of
Wendys child Wookie, then?
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 21
But if the couple divorces and then remarries, so that W is H's
wife at death, she takes under the will. The statute operates to
revoke gifts and appointments only if they are divorced at
testator's death.
C. TESTATOR HAS CHILD AFTER WILL IS EXECUTED -- "PRETERMITTED
CHILD"
25. When he made his will, Tank and his wife had one child:
Alvin. After Tank made the will he and his wife adopted a child:
Billy. Tank died survived by his wife, Alvin and Billy. His will
left two-thirds of his $260,000 estate to his wife and the other
one-third to a sister. What rights if any do the children have in
this estate and why?
Alvin (alive when the will was executed):
Unless [says UPC] omission of the child was not intentional but
was by accident or mistake. [E.g., T mistakenly thought Alvin was
killed in Viet Nam. Statute applies only to mistake as to child of
testator. If he mistakenly thought his brother was killed in Viet
Nam, UPC statute does not apply.]
Billy? Pretermitted child (born or adopted after the will was
executed) takes:
Unless it appears from the will (no extrinsic evidence) that
omission was intentional.
25a. Same facts, except that two years after adopting Billy,
Tank executes a codicil to his will that names Second Bank rather
than First Bank as executor.
Under the doctrine of republication by codicil, the will speaks
(is republishedis deemed to have been executed) on the date of the
last codicil thereto. Billy is treated as having been born before
the will was executed, and has no rights as a pretermitted
child.
VI. PROBLEMS ASSOCIATED WITH TYPES OF TESTAMENTARY GIFTS
Specific devise or bequest: "I devise Blackacre to my son John."
Demonstrative legacy: A general amount from a specific source. "I
bequeath $25,000,
to be paid from the proceeds of the sale of my Shell Oil stock,
to Sally."
General legacy: "I bequeath the sum of $10,000 to my nephew
Ned."
Residuary gift: "I give all the rest, residue and remainder of
my estate to Betty."
Intestate property: If a partial intestacy because the will,
poorly drafted, does not contain a residuary clause.
-
Page 22 WILLS AND TRUSTS LAW SCHOOL LEGENDS
A. ABATEMENT OF LEGACIES TO PAY DEBTS AND EXPENSES
What happens when there are so many claims against the estate
that there are not enough assets to cover all of the gifts made by
the will? ("Abatement" problem.) Absent contrary provision, debts
and expenses are first paid out of:
(1) intestate property, if a partial intestacy for some reason;
(2) then out of residuary assets,
(3) then out of general legacies, and finally
(4) out of specific bequests.
Within each category, gifts abate pro rata; no distinction is
made between real and personal property. (Nearly all states have
abolished the common law rule under which personal property was
sold off before any real property was touched.)
Under the UPC and in most states, demonstrative legacies are
treated the same as specific bequests (and thus last to be abated)
to the extent of the value of the specified property, and as a
general legacy to the extent of any excess. If (e.g.,) the will
made a bequest of $25,000, to be paid from the proceeds of the sale
of my Shell Oil stock, to Sally," but the Shell stock was only
worth $16,000 at testators death, for abatement purposes it would
be treated as a specific bequest as to $16,000, and as a general
legacy as to $9,000.
B. PRO RATA APPORTIONMENT RULE GOVERNS DEATH TAXES 26. Counting
life insurance, Ted has a $2,000,000 estate (net of expenses and
debts). Ted's will
bequeaths Blackacre (worth $400,000) to his son Al, $200,000 to
his church, and his residuary estate ($1,200,000 after debts and
expenses) in trust: Income to Ted's daughter Betty for life,
remainder to Betty's children. Ted was the insured under a $200,000
life insurance policy; the proceeds are paid in a lump sum to Ted's
sister Carol. Allowing for a $200,000 charitable deduction, Ted's
taxable estate was $1,800,000, and estate taxes payable by reason
of Ted's death total $108,000. Ted's executor wants to know:
Against whom should the $108,000 in death taxes be charged? Advise
him.
Majority rule: Absent contrary will provision, death taxes are
apportioned (on a pro rata basis) among all persons interested in
the estate (beneficiaries of both probate and non-probate
transfers). Exception: Beneficiary of an interest that qualifies
for an estate tax charitable or marital deduction gets benefit of
that deduction (does not have to contribute pro rata).
Numerator: value of each testamentary & nontestamentary gift
Denominator: total value of taxable estate Al [specific devise of
Blackacre]: $400,000 x $108,000 = $24,000 $1,800,000 Church
[$200,000 cash legacy]:
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 23
Residuary trust: $1,200,000 x $108,000 = $72,000
$1,800,000 Carol [$200,000 life ins. proceeds]: $200,000_ x
$108,000 = $12,000 $1,800,000 C. SPECIFICALLY DEVISED PROPERTY NOT
IN ESTATE AT DEATH -- ADEMPTION 27. Terry executes a will that
devises Blackacre to his brother Bob, and his residuary estate to
his
wife. Two years later, Terry sells Blackacre for cash, and uses
the sale proceeds to buy Whiteacre. Terry died last month without
having changed his will. What does Bob take under Terry's will?
________ Where the will makes a specific gift of property, and
the property is not owned by the testator at death (for whatever
reason): 28. Henny's will contains this provision: "I bequeath the
sum of $25,000, to be paid out of the
proceeds of sale of my Shell Oil stock, to Sally."
[Demonstrative legacy.] One year before her death, Henny sells all
of her Shell Oil stock and uses the sale proceeds to buy Exxon
stock.
________ Does ademption apply to demonstrative (or general)
legacies?
On Henny's death, what does Sally get?
(But if Henny owned any Shell Oil stock at her death, executor
would be under duty to sell it to raise the $5,000.)
D. STATUTORY EXCEPTIONS TO THE ADEMPTION DOCTRINE
29. Same facts as in #27 (specific devise of Blackacre), except
that Terry sold Blackacre for $10,000 cash and a $90,000 note
secured by a mortgage on Blackacre. At Terrys death, the balance on
the note is $65,000. What does Bob take under Terry's will?
These UPC provisions, which have been enacted in a number of
non-UPC states, reverse the common law rules, which applied
ademption to any case where specifically devised property was not
in the estate at death. (At common law, testators probable intent
was immaterial.)
#1. Specific devisee takes any remaining specifically devised
property and:
-
Page 24 WILLS AND TRUSTS LAW SCHOOL LEGENDS
-- Any unpaid balance of purchase price (together with any
security interest) by
reason of sale of the property. -- Any amount of condemnation
award for taking of the property, to the extent
unpaid at testator's death. -- Any amount of fire or casualty
insurance proceeds for damaged or destroyed
property unpaid at death.
Caveat: These rules DO NOT APPLY if the sale proceeds,
condemnation award or insurance claim were fully paid before
testator's death. (Rationale: Testator had time to change his
will.)
-- Property acquired as a replacement property for specifically
devised property.
[I devise my residence on Smith Street to my sister Sue; T sells
that house and buys a residence on Oak Street.]
#2. Will executed before T declared incapacitated: If
specifically devised property is sold by guardian or conservator,
or if condemnation award or insurance proceeds are paid to the
guardian or conservator because of fire or casualty, the specific
devisee has a right to a general legacy equal to the net sale
price, condemnation award, or insurance proceeds. (Otherwise,
guardian or conservator could change the will by deciding what
assets to sell. Also, T didn't have capacity to change his will to
adjust for the loss or destruction of the property.)
E. BEQUESTS OF STOCK AND OTHER SECURITIES 30. Tony executes a
will that contains the following clauses: "5th. I give my 100
shares of IBM stock to Albert Avins." "6th. I give 100 shares of
Kodak stock to Ben Baker."
One year before his death, Tony sells his IBM stock and uses the
sale proceeds to buy AT&T stock. Also before his death, Tony
sells his Kodak stock and invests the proceeds in 200 shares of
Polaroid stock.
a. What does Avins get ("my 100 shares of IBM stock")? b. What
does Baker get ("100 shares of Kodak stock")? For ademption
purposes,
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 25
31. Suppose, instead, that Tony does not sell his Kodak stock?
After Tony executes the will but before his death, Kodak splits
two-for-one, and certificates for 200 shares of Kodak stock are
found in Tony's safe deposit box after his death.
[Majority rule: A specific bequest of stock includes any stock
produced by a stock split, stock dividend, and stock resulting from
a merger, reorganization, or other action initiated by the entity
after the will was executed, but does not include stock acquired by
the exercise of a stock option.]
Held: Baker takes all 200 shares of Kodak stock, because the
gift of stock was a specific bequest!
But how can that be, when the gift was called a general legacy
in #30?? Something is going on herebut let us recognize where it
is. In #30, the courts have seized on the absence of a possessive
pronoun "my," calling it a general bequest to avoid ademption. But
the issue here is different (stock split). A gift of stock can be
specific for one purpose (stock split) and general for another
purpose (ademption).
F. SPECIFIC GIFT OF ENCUMBERED PROPERTY IS THE LIEN EXONERATED?
32. Teddy's will devises Whiteacre to Joan, and devises his
residuary estate to Betty. On Teddy's
death, Whiteacre is subject to a mortgage securing a $10,000
note on which Teddy was personally liable. Joan demands that
Teddy's executor pay the $10,000 debt out of the residuary estate
so that she will take title free of the mortgage lien. Is she
entitled?
Common law: YES because liens on specifically devised property
are "exonerated from the residuary estate.
UPC and majority rule: ________* because exoneration of liens
doctrine: (*unless the will directs exoneration) Under the majority
rule, Joan takes:
VII. REFERENCE TO FACTS AND EVENTS OUTSIDE THE WILL A.
INCORPORATION BY REFERENCE DOCTRINE 33. On July 1, 1998, Thor
executes a will that provides: "I devise Blackacre to the person
named
in a memo dated May 4, 1998, that I have written and placed in
my safe deposit box. I give my residuary estate to my brother Ben."
After Thor's death there is found, in his safe deposit box, a typed
memo dated May 4, 1998, signed by Thor but not witnessed: "Pursuant
to my will, I want Blackacre to go to my nephew Norman."
________ Does Norman take Blackacre under the memo, when the
memo was not
witnessed, and was not part of the will that was signed by Thor
and the attesting witnesses?
-
Page 26 WILLS AND TRUSTS LAW SCHOOL LEGENDS
An extrinsic document, not present when the will was executed
(and thus not part of the duly executed will), can be INCORPORATED
BY REFERENCE into the will . . . IF:
#1. Writing must be in existence when the will was executed.
#2. Will must show an intent to incorporate the writing.
#3. Will must describe the writing sufficiently to permit its
identification. ("So there can be
no mistake as to the identity of the document referred to.")
33a. Same facts, except that the memo was dated May 4, 1999.
________ Incorporation by reference on these facts? 34. With Tom's
will in his safe deposit box was the following typewritten,
unwitnessed memo
written after Tom signed his will: "In my will I referred to a
list that I would prepare at a later date leaving certain items of
personal property, and this is it: I leave my golf clubs to my
friend, Hobie Gates, my fishing tackle to my son Sam, $2,000 to my
daughter Donna, and my IBM stock to my brother Ivan. /s/ Tom
Testator." If the state has enacted the controlling UPC provision,
valid disposition . . .
________ as to golf clubs? ________ as to the fishing tackle?
________ as to $2,000? ________ as to the IBM stock?
Under the UPC and several non-UPC states, statutory exception to
incorporation by reference rule: Will may refer to written
statement or list that disposes of TANGIBLE PERSONAL PROPERTY
(other than money, intangibles, property used in trade or business)
not specifically disposed of by the will. The written list must be
signed by testator, must describe the property with reasonable
certainty. Can be written before or after the will is executed; can
be altered at any time.
Statute provides a simple and inexpensive procedure for making
gifts of personal items of sentimental value, without having to
amend the will every time the client changes his mind, or wants to
add to the list.
B. ACTS OF INDEPENDENT SIGNIFICANCE DOCTRINE 35. Tina dies
leaving a will that provides: "I give the automobile that I own at
my death to my
nephew Norman. I give the furniture and furnishings in my living
room to my sister Sue." A year before her death, Tina had traded
her 1999 Honda Civic in on a brand new Mercedes Benz. Six months
before her death, Tina moved a $25,000 Picasso print from his den
and mounted it on her living room wall. What is the effect of these
acts on the provisions of Tina's will?
________ Does Norman take the Mercedes? ________ Does Sue take
the Picasso?
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 27
Key words: Acts of independent significance Also known as
doctrine of nontestamentary acts *________ Same result for gift of
"contents of my sea chest"?
* Except for title documents: deeds, stock certificates, bank
passbooks
VIII. OTHER WILLS DOCTRINES A. MISTAKES OR AMBIGUITIES IN THE
WILL 36. Tom tells his lawyer to draw his will and give his nephew
Ed "300 shares of Acme stock." In
typing the will, the typist makes a mistake and types the figure
as "200," which Tom does not notice when he signs the will. At
Tom's death he owns 300 shares of Acme stock. Ed offers the
testimony of Tom's lawyer that the typist made a mistake. What does
Ed get and why?
________ shares:
Absent suspicious circumstances, it is conclusively presumed
that: 37. "I give $10,000 to my nephew, John Paul Jones." Problem:
T has a nephew James Peter
Jones, and another named Harold Paul Jones, but no nephew named
John Paul Jones. Who takes the $10,000?
This is called a _____________________________________ because
there is a ________________________________________. ________ Is
extrinsic evidence admissible? What if the extrinsic evidence does
not cure the ambiguity? 38. Rod's will includes this gift: "I give
the sum of Twenty-five Dollars ($25,000) to my niece
Nora." This is called a
______________________________________________________.
________ Is extrinsic evidence admissible?
________ Does the admissible evidence include "facts and
circumstances"
-
Page 28 WILLS AND TRUSTS LAW SCHOOL LEGENDS
evidence? (evidence about the testator, his family, the
claimants under the will and their relationship to the testator,
testator's habits and thoughts, etc.)
________ [majority rule:] Does the admissible evidence include
testator's declarations of intent to a third party? (E.g., he told
a friend he had bequeathed $25,000 to his niece Nora.)
[But modern trend is to admit all types of extrinsic evidence to
cure patent as well as latent ambiguities.]
________ Does the admissible evidence include anything testator
said to his attorney?
B. CONTRACTS RELATING TO WILLS
Under the UPC and in most states by statute, a contract to make
a will or not to revoke a will, can be established only by:
(1) provisions in the will stating the material provisions of
the contract, or (2) express reference in the will to a contract
and extrinsic evidence proving the contract's
terms, or
(3) a writing signed by decedent evidencing the contract.
Execution of a joint will or reciprocal wills does not raise a
presumption that a contract exists.
These statutes have eliminated troublesome litigation over joint
wills (the wills of two persons on one piece of paper -- "We and
each of us dispose of our property as follows. . ."), as to whether
the will (wills?) was executed pursuant to a contract that the
surviving party will not revoke the joint disposition. The cases
sometimes found the existence of a contract merely from the
execution of a joint will using plural possessive pronouns (we, us,
our) that made a disposition of the combined estates.
C. EFFECT OF WORDS OF DISINHERITANCE IN A WILL 39. Tammy's will
devises Redacre to her son Sam and her residuary estate to her
husband Harold.
The will provides: "I intentionally make no provision for my
daughter Nancy, as she married out of the faith and has been a
great disappointment to me." Two years later, Tammy divorces
Harold, and two years after that Tammy dies without having changed
her will. She is survived by Sam and Nancy as her nearest kin.
Nancy had no children. Who takes the residuary estate?
Harold?
Who takes the residuary estate, then? (majority rule)
___________ to Sam and ___________ to Nancy.
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 29
Most states apply the common law rule, which says: When a will
does not make a complete disposition of the estate (partial
intestacy), words of disinheritance in the will are
ineffective.
Rationale: When property passes by intestate succession, it
passes pursuant to the intestacy statute, not the decedent's
will.
"However, under the Uniform Probate Code's negative bequest
rule, a will can provide how property shall NOT be disposed of,
meaning that words of disinheritance are given effect; estate is
distributed as though disinherited person predeceased the testator.
Under the UPC, Sam would inherit the entire residuary estate.
D. NONPROBATE ASSETS are interests in property that are not
subject to disposition by will or
inheritance, and do not pass through a person's probate estate
for purposes of administration. Major types (also called
nontestamentary assets):
#1. Property passing by right of survivorship (joint bank
account, etc.). #2. Property passing by contract: life insurance,
employee retirement benefits paid to
beneficiary other than insured's executor or estate. #3.
Property held in trust, including a revocable trust, where trust
terms govern
distribution of assets. #4. Property over which the decedent
held a power of appointment. 40. T has a $50,000 Aetna life
insurance policy that names Bill Bates as beneficiary. T dies
leaving a will that provides: "I direct that the proceeds of my
Aetna life insurance policy be paid to my sister Ann Painter." Who
takes the $50,000 policy proceeds?
IX. ELECTIVE SHARE STATUTE 41. Winkie dies leaving a will that
provides: "I give my husband Hobie Gates the sum of $23,
which is one dollar for each miserable year I spent with him. I
give all the rest of my property to my faithful chauffeur Claude,
in appreciation of his many services." Winkie is survived by Hobie,
Claude and the couples daughter Dorkie. What are Hobie's
rights?
Hobie should file for an elective share of Winkies estate. All
non-community property states except Georgia have elective share
statutes designed to protect spouses against disinheritance, by
ensuring that the surviving spouse can take a specified minimum
share of the decedents estate. (None of the community property
states has an elective share statute.)
1. Amount of elective share. In many states, the elective share
amount is one-third of
the decedent's net estate if the decedent was survived by
descendants, one-half if the decedent was not survived by
descendants.
Under the original (1969) Uniform Probate Code, the amount of
the elective share is one-third of the net estate, regardless of
whether the decedent was survived by descendants.
-
Page 30 WILLS AND TRUSTS LAW SCHOOL LEGENDS
The Revised 1990 UPC takes an accrual approach (c.f. pension
plan vesting rules), under which the amount of the elective share
is tied to the length of marriage. The surviving spouse is entitled
to an elective share percentage of 3% per year for the first 10
years of marriage, and 4% for the next 5 years until after 15 years
of marriage the elective share is fully phased in at of the
estate.
2. Spouse must file notice of election. The right to an elective
share is not automatic.
The spouse must file a notice of election within a specified
period (usually within 6 months after the will is admitted to
probate).
3. Who may make the election. Election can be made on behalf of
a legally
incapacitated spouse by a guardian or conservator, with court
approval, upon a showing that an election is necessary to provide
adequate support for the spouse during his probable life
expectancy. But if the spouse dies before election is made, an
election cannot be made by the deceased spouse's personal
representative. [Rationale: Purpose of elective share is to protect
the surviving spouse against disinheritance, not to provide
benefits to the spouse's heirs.]
4. In making up the elective share all beneficiaries of the
estate contribute pro rata, and
their interests in the estate are reduced pro rata. However,
property left outright to the spouse by will is first applied.
(Purpose: To avoid disruption of decedent's testamentary plan as
far as possible.) If, for example, Rick's will devises Blackacre to
his wife Lucy and the rest of his estate to his daughter, and Lucy
files for an elective share, the value of Blackacre is first
applied in making up the elective share entitlement.
42. Two years before his death, Hank established a revocable
trust naming Acme Bank as trustee:
Income to Hank for life, and on Hank's death remainder to his
son Steve (by a former marriage). Hank died two months ago, leaving
a will that bequeathed his estate to his wife Wendy and Steve in
equal shares. While that sounds fair enough, nearly all of Hank's
property had been placed in the trust. Hank left a net probate
estate (after expenses) of $36,000; the value of the assets in the
revocable trust at Hank's death is $900,000. Wendy files for an
elective share. Does Wendy's elective share right apply to the
assets in the revocable trust?
Minority rule: NO. Elective share statute giving one-third or
one-half of the decedent's "estate" means the probate estate. The
elective share does not apply to non-probate transfers such as
revocable trusts, etc., because these are not part of the
transferor's "estate."
UPC and majority rule: YES. The policy underlying the elective
share should not be defeated by lifetime and nonprobate transfers
in which the donor retains rights, powers, or economic benefits. In
most states, the elective share applies to the AUGMENTED ESTATE,
which includes the net probate estate and also lifetime transfers
in which the grantor retained the power to revoke, or to invade,
consume or dispose of principal. In addition to revocable trusts,
this includes Totten Trust ("A, Trustee for B") bank accounts,
joint and survivor bank accounts, etc.
X. WILL CONTESTS
Only interested parties can bring a will contest: Persons with
an economic interest adversely affected by the will's probate.
(Heirs, legatees under earlier will whose interest would be
defeated
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 31
by this will.) Thus a close personal friend, not named as
legatee in an earlier will, has no standing to contest the
decedent's will.
A. LACK OF TESTAMENTARY CAPACITY. The test: Did the testator
have sufficient capacity to: 1. Understand the nature of the act he
was doing? (He was writing a will.) 2. Know the nature and
approximate value of his property? 3. Know the natural objects of
his bounty? 4. Understand the disposition he was making?
Evidence of capacity or lack of it must relate to circumstances
at the time the will was executed, or shortly before or shortly
thereafter. The more distant in time from the will's execution a
particular fact may be, the less significance it has on the
question in issue: Did the testator, at the time the will was
executed, have capacity? [Recent case: Six months before signing
his will, T had been in a mental hospital suffering from paranoia
and manic depression: Evidence was too remote to be relevant to
condition at the time the will was signed.]
Mere old age, poor health, frailty, failing memory, or
vacillating judgment are not inconsistent with testamentary
capacity if the testamentary prerequisites [above] were possessed
by testator.
43. T was 93 years old when he signed his will. Six months
earlier, T had been adjudicated
incapacitated, and a guardian [or conservator] was appointed to
manage his property. The trial judge granted the heirs' motion for
a directed verdict on the ground that T did not have testamentary
capacity.
________ Was this decision proper? #1: Adjudication of
incapacity involves ______________________________
(capacity to contract, to manage one's affairs). #2. Jury could
find that the will was executed during a ______________________. B.
UNDUE INFLUENCE: Where one with testamentary capacity is subjected
to and controlled by a
dominant influence or power. Burden of proof is on contestants,
who must show: 1. Existence and exertion of the influence. 2.
Effect is to overpower the mind and will of the testator. 3.
Product is a will (or a gift therein) that would not have been made
but for the
influence. (Undue influence may be shown as to the entire will,
or as to one gift in the will.)
"Influence is not undue unless the free agency of the testator
was destroyed and a will produced that expresses the will, not of
the testator, but of the one exerting the influence." ["mental
duress"]
While evidence of undue influence is usually circumstantial,
these alone are not enough: 1. Mere opportunity to exert influence.
Fact that one child (who received major share of
-
Page 32 WILLS AND TRUSTS LAW SCHOOL LEGENDS
the estate) lived with mother, wrote checks for her, balanced
the checkbook, helped on income tax, held a power of attorney . . .
is not evidence that the opportunity was taken advantage of.
2. Mere susceptibility to influence due to illness, age. Fact
that Mother was very old, had
broken her hip, had memory lapses, took Valium . . . this is not
evidence of undue influence.
3. Mere fact of unnatural disposition Fact that will gave
daughter of estate and her
two sons one-sixth eachthat is not evidence that the will was
the product of undue influence.
44. Tommy's girlfriend Gloria nagged him, badgered him, and
threatened to leave him unless he
"proved his love" by writing a will in her favor, which he did.
Undue influence? 45. Will drafted by Attorney's law partner devised
entire estate to Attorney, whom client had never
met before.
Where there exists a confidential relationship between the
testator and a party, and that party will benefit from the will,
and that party had the opportunity to exert undue influence, there
is an _________________________________________________ of undue
influence, which is strengthened when there are
___________________________________________
If an inference is raised, this doesn't affect the burden of
proof (contestant still has burden of proof), but will proponent
now has the burden of going forward with evidence that no undue
influence was exerted. If will proponent does not produce
sufficient rebuttal evidence, the inference satisfies the
contestant's burden of proof on the issue of undue influence.
46. Terry (who has no children) leaves a will that bequeaths
$10,000 to his niece Nell and his
residuary estate to his cousin Sam. The will contains a no
contest ("in terrorem") clause: "If any beneficiary contests this
will or any part thereof, he shall forfeit any interest given to
him by my will." Nell contests the will on grounds of incapacity
and undue influence, but loses; the will is admitted to probate.
Does Nell forfeit her legacy?
___________ . . . unless she had
______________________________________________.
Majority rule: No-contest clauses are given full effect unless
the court finds that the contest was brought in good faith and with
probable cause (i.e., it wasn't a strike suit designed to extract a
settlement). Thus Nell does not forfeit the legacy IF court finds
she had probable cause for filing the will contest.
THE "UNLESS" IS THE MOST IMPORTANT PART OF THE MAJORITY
RULE!
In several states (e.g., Massachusetts, New York), no-contest
clauses are given full effect regardless of whether the contest was
filed with probable cause. Rationale: A testator
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 33
should be permitted to protect his testamentary plan, and his
reputation, against post-death attack.
XI. ESTATE ADMINISTRATION -- CREDITORS' CLAIMS 47. Tom died May.
His will was admitted to probate, and his wife Wilma, named as
executor in
the will, published proper notice to creditors (in a newspaper
of general circulation) on June 10. For the last two months of his
life, Tom was hospitalized at Mercy Hospital. On December 20, the
Hospital filed its claim against Tom's estate for the $24,000
expenses of Tom's last sickness. Wilma as executor refuses to pay
the claim.
________ [Former law:] Is Hospital entitled to collect the
$24,000 from Tom's estate? ________ [Current law:] Is Hospital
entitled to collect the $24,000 from Tom's estate? Traditionally,
nearly all states had nonclaim statutes (special short statutes of
limitation) applicable
to claims against a decedents estate. All claims not presented
within a prescribed period of time after the first publication of
notice of administration [e.g., Illinois, 6 months, Uniform Probate
Code, 4 months; Oklahoma, 2 months) were barred.
In Tulsa Professional Collection Service v. Pope (1988), the
U.S. Supreme Court held that the
Oklahoma nonclaim statute (which provided for notice by
publication only) was unconstitutional as applied to known
creditors or creditors who were reasonably ascertainable. The Due
Process clause requires personal notice to known creditors before
their claims can be barred. As a result, all states with similar
nonclaim statutes had to amend their statutes.
The Uniform Probate Code has three provisions relating to
creditors claims. Under UPC 3-801(b),
the personal representative may (its optional) give personal
notice to creditors, requiring them to present their claims within
the later of (i) 60 days after receipt of the notice or (ii) 4
months after the first publication of notice; otherwise their
claims will be barred. The personal representative who wants to
expedite matters can give personal notice to any creditor, and can
shorten the time required for presenting the claim.
Under UPC 3-801(a), all claims not presented within 4 months
after the first publication of notice
of administration are barred. This the very type of statute that
was ruled unconstitutional in Tulsa Professional Collection Service
v. Popebut only as applied to known or ascertainable creditors.
This UPC provision recognizes that it is still constitutionally
permissible to cut off the claims of unknown and unascertainable
creditors with notice by publication only.
UPC 3-803 sets out a one-year statute of limitations applicable
in all cases, whether the decedent
left a will or died intestate, and even if no permissive
personal notice or notice by publication was given. All claims not
presented within one year of the decedents death are barred. Dictum
in Tulsa Professional Collection indicated that such a
self-executing statute of limitations, which applies to all cases
and is not dependent on any probate court, would be
constitutionally permissible.
-
Page 34 WILLS AND TRUSTS LAW SCHOOL LEGENDS
TRUSTS TRUST is an arrangement for making gifts of property and
for the management of assets, under which the trustee holds legal
title to the trust assets for the benefit of the beneficiaries, who
hold equitable title. Trustee has the burdens of ownership (duty to
manage, safeguard, invest, etc.); beneficiaries have equitable
title and the benefits of ownership.
I. REQUIREMENTS FOR A VALID TRUST To have a valid trust, SETTLOR
. . . DELIVERS . . . RES (trust property) . . . to TRUSTEE . . .
for the benefit of the BENEFICIARIES, with INTENT TO CREATE A
TRUST. Trust must be for a LAWFUL PURPOSE. As with the law of
gifts, no consideration is required for creation of a trust. A.
SETTLOR must have legal capacity. (must be age 18 or over; must
have capacity to convey legal
title to the trustee, a higher test for capacity than for
wills.) B. DELIVERY requirement does not apply to a
self-declaration of trust ["I hereby declare myself
trustee..."] or testamentary trust. But for an inter vivos trust
that names third party as trustee, the mere intent to create a
trust, or a gratuitous promise to create a trust, is not
sufficient. As with the law of gifts there must be delivery of
subject matter of the trust, with the intent to convey legal title
to the trustee.
1. Sam told lawyer he wanted to create trust for his daughter,
but died before signing trust
instrument or delivering assets to the trustee. Valid trust?
________ because no delivery of the trust assets with intent to
transfer title during
Sam's lifetime.
Same answer where trust signed by Dad purported to create trust
to be funded with "whatever money or property that I contribute to
the trust over the next ten years." This was merely a promise to
create a trust in the future, not supported by consideration.
C. RES: the corpus, the principal, the subject matter of the
trust.
To have a trust, legal title to a specific interest in property
must be conveyed to the trustee. The subject matter of the trust
must be certain and identifiable. If there is no trust property,
there is no trust.
2. When Grandpa told Uncle Hobie Gates that he was leaving
Whiteacre to Hobie in his will,
Hobie signed an irrevocable Declaration of Trust: "I declare
myself trustee of my interest in Whiteacre; and when I receive it
from Grandpa's estate, I shall pay the income therefrom to Nephew
Ned for life, remainder to his issue." After Grandpa's death Uncle
Hobie received Whiteacre pursuant to the will. Can Nephew Ned
enforce the trust against Uncle Hobie?
________ Was valid trust created when Hobie wrote the
irrevocable Declaration of Trust?
Because at that time, Hobie had an:
-
LAW SCHOOL LEGENDS WILLS AND TRUSTS Page 35
A different result is reached when the promise to hold property
(to be received in the future) in trust is supported by
consideration. Under contract principles, the trust automatically
attaches when the property is received.
3. Willa, who owns common stock that pays her over
$100,000/year, writes, signs and notarizes
a document: "I hereby create a trust for the benefit of my maid
Mimi. I shall pay Mimi $3,000/month from dividends paid on stock
that I own. After my death, [Bank] as trustee shall continue to pay
Mimi $3,000/month until her death." No cash, stock or other
property was set aside as the corpus of the trust.
________ Valid trust? D. TRUSTEE
Must have legal capacity to deal with the property (must be over
age 18; must have capacity to contract and to execute a deed).
4. Ann's will devises her residuary estate in trust: "income to
my daughter Martha for life, and
on her death to distribute the trust principal to her
descendants." However, the will does not name anyone as
trustee.
________ Valid trust?
No trust fails for lack of a trustee. If the intent to create a
trust is clearly manifested but no trustee is named or if the named
trustee dies or resigns with no provision for a successor trustee,
the court will appoint a suitable successor to carry out the
trust.
5. Irreconcilable conflicts arise between First Bank (the
trustee) and the beneficiaries. May
First Bank resign as trustee? If so, what procedure must it
follow? #1: #2: 5a. Same facts in #5, except that First Bank does
not want to resign as trustee. The beneficiaries
bring an action seeking to remove First Bank as trustee, citing
the irreconcilable conflicts. Should they prevail?
________ . . . unless the beneficiaries can show that conflicts
prevent trustee from carrying out duties, or that trustee has
breached a material term of the trust.
What explains the different results in #5 and #5a?
-
Page 36 WILLS AND TRUSTS LAW SCHOOL LEGENDS
6. Albert transfers title to Blackacre to Hobie Gates as trustee
for the benefit of Albert's's son
Carl. Under the agreement, Carl has the power to manage and
control the use of Blackacre, and Hobie as trustee has no powers or
active duties over the property. [Cf. Statute of Uses, 1536!]
________ Valid trust with respect to Blackacre?
If named trustee has no powers or active duti