Wills

Introduction

Right to draft a will provided statutorily--& states have & will change the laws dealing with probated assets.

Probated assets - those assets individuals own at time of death. Whether one dies intestate or not, probate concerned with assets at time of death.

When a person dies, & probate is necessary, 1st step is appointment of a personal representative to oversee winding up of decedents affairs. Principal duties are:

primary administration: probate in jurisdiction where decedent lived - domicile at time of death

ancillary administration (jurisdiction) - if real property in other jurisdiction

testate:

with will

personal representative = executor (designated in will which may waive needed bond)

real property passes to devisees

personal property passes to legatee

intestate:

without will,

personal representative = administrator (assigned by court & must give bond)

real property passes to heirs &

personal property passes to next of kin

Personal rep hires atty for estate, not decedent in will. Can be named personal rep & hire self as atty for estate, requiring disclosure that will receive a fee for each. Many jurisdictions limit to 1 fee though can serve both capacities. Can name anyone who is competent as personal representative, though state statute may limit who.

Ohio allows cars up to a certain number & value to be transferred outside of probate court.

Probably statute where if estate small enough it does NOT have to go thru probate. Ohio - <25K or <85K if give everything to spouse.

May want probate so that SofL will run against creditors & personal rep not liable even if technically do not need. Also if have title problem, especially where real property where by not changing title will cloud the title-- eventually requiring quiet title action when want to market.

If kids are minors may need to appoint guardian for $.

Probate performs 3 functions:

Drafting of will for anyone but self is unauthorized practice of law.

Hodel v. Irving stands for assumption that right to transmit property at death is a separate identifiable property right & if this right is taken away (by the state), compensation must be paid. Indian statutes may have been OK if escheat occurred where intestate, but not where testate. This is case where small interest in land to Native Americans automatically escheated to tribe.

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In US, several kinds of inter vivos transfers serve same function as a will & are widely used:

Generally, restraints/conditions on receiving upheld where reasonable.

Provisions encouraging separation or divorce have usually been held invalid, unless dominant motive of T to provide support in event of separation or divorce.

Provisions requiring a B to change his name usually been upheld, unless dominant purpose is to separate B from his family.

Provisions requiring destruction (of real or personal property) generally considered waste & NOT upheld.

Will Substitutes: Nonprobate Transfers

Usually takes much less to create will substitutes that a will.

These type of Ks feel testamentary in nature but are NOT viewed as testamentary because legislature or courts have so determined. Most common are insurance policies, & payable on death accounts--they all allow change of B during lifetime of creator.

Most trustworthy POD contract is life insurance.

Where leave residue of estate to spouse in will, & parties subsequently divorce but testate does not change will, spouse will get. Where forget to change spouse as B in life insurance after divorce some jurisdictions (like OH) have predeceased statutes.

Majority rule: attempt to change B of a life insurance by will, without more, is ineffectual.

UPC provides that if K permits owner to change B by will, the owner may do so.

UPC dealing with bank accounts provides that B of a joint account or a POD bank account may NOT be changed will.

Bank accounts have traditionally enjoyed a special status. Do NOT extend JTRS beyond bank accounts.

Title to a joint bank account creates a rebuttable presumption that donor depositor intended right of survivorship, which presumption can be rebutted by clear & satisfactory evidence. i.e., convenience account.

Survivorship feature of joint bank account is testamentary in character. Where donee/depositor is intended by donor/depositor to have right to withdraw during his lifetime, survivorship feature has posed no problems to court since there has been transfer of present interest to support survivorship - inter vivos gifts (intent, delivery & acceptance.)

Where donor withholds from donee/depositor any right to withdraw during lifetime of donor, some courts hold survivorship feature of account to be invalid testamentary disposition.

Effland: Account which confers no rights during lifetime, but carries survivorship rights, is justified & NOT violation of Statute of Wills. Is present gift of balance of account with donee's enjoyment postponed until donor's death. Gift is NOT perfected until donor's death. Gift should NOT be invalidated because donor cannot make withdrawals. Supported by joint account statute which vests title in survivor.

Statutes validate following three kinds of accounts in all states:

Donative Transfers

Gift is transfer of property from one to another without consideration. Elements:

Delivery is dominant concept in law of gifts as indispensable condition for effective transfer of ownership. It comprehends any acts or conduct of donor which a court will regard as legally sufficient to manifest an intention to transfer ownership from donor to donee.

Delivery may be symbolic where donor gives to donee symbol which represents possession. Symbol sufficient only when conditions so adverse to actual delivery as to make symbolic delivery as nearly perfect as circumstances allow.

General Rule: Gift of property evidenced by written instrument executed by donor is valid without manual delivery of property. Written instrument must be delivered to donee.

Transfer of ownership cannot be given effect unless, at moment when it is to occur, it is sustained by the owner's properly-manifested intent.

Acceptance by donee is essential element, but when a gift is of value to donee, law presumes acceptance.

Gift can be made through agent of donee. Where agent of donor is given the gift for the donee, donor must relinquish dominion & control to be effective.

Inter Vivos Gift of Remainder Title

Valid inter vivos gift of chattel may be made where donor has reserved life estate in chattel & donee never has physical possession of it before donor's death.

If intention is to make testamentary disposition effective only after death, gift is invalid unless made by will. Gift of a remainder title vests immediately in donee & any possession is postponed until donor's death whereas under a will neither title nor possession vests immediately.

Gift in contemplation of death

Modern gift causa mortis definitions: Gift of personal property made by a party in expectation of death, then imminent, & upon essential condition that property shall belong fully to donee in case donor dies as anticipated, leaving donee surviving him, & gift is not in the meantime revoked. Elements:

Gift cause mortis essentially testamentary in nature, & an invasion into the province of the statute of wills. Gift causa mortis differs from a legacy only in the requirement of delivery. Delivery is in effect the only safeguard imposed by law upon a transaction which would ordinarily fall within the statute of wills. Writing establishes donative intent, NOT delivery requirement.

Courts have held that if donee previously acquired possession of subject-matter with donor's consent, donor's oral manifestation of donative intent, without more, is sufficient.

Traditionally, suicide was not a sufficient peril to life. No longer strictly held.

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Tenancy by entirety- tenancy in common between married couples.

Wright v. Huskey (TN C/A, 1979)

Grantor executed a deed which conveyed land to grantees as equal tenants in common, reserving a life estate in grantor & the right to sell the property without the grantees.

Issue is whether instrument is testamentary in character or a deed. Test: intent of grantor is controlling--in order to be held a deed it must convey an interest to take effect presently, though enjoyment may rest in future whereas a will speaks as of the death of T. This is a will, therefore void deed.

Cases split as to whether revocable deeds of land are testamentary & therefore void for failure to comply with Wills Act.

Revocable Trusts

Title is separated:

legal title - trustee

benficiary title - beneficiary of trust

All jurisdictions recognize validity of trust where property is transferred to another person as trustee & settlor reserves power to revoke trust during life. Settlor may also reserve an income interest & a testamentary power of appointment.

Revocable declaration of trust - settlor declares himself trustee for the benefit of himself during lifetime, with remainder to pass to others at his death.

Durable Power of Atty - can be created for all things (personal & real property) or just for property or just for personal care or just for health care decisions. Principles incapacity does NOT terminate durable power of atty where a power of atty is terminated. Now authorized in all states. Name someone you trust as agent.

living will - usually must be in writing, executed in certain form,

who should get copy--doctor, atty & make sure family knows about it

Rights of Surviving Spouse

Separate property state

Community property -

Private pension plans funded by employers or jointly funded by employer & employee contributions have mushroomed since middle of this century. Most governed by federal ERISA which requires that spouse of employee must have survivorship rights if employee predeceases spouse.

If employee dies before retirement & pension is vested, surviving spouse entitled to preretirement survivor annuity.

Nearly all states have homestead laws designed to secure family home to surviving spouse & minor children, free of claims of creditors. Generally surviving spouse has right to occupy family home for his/her lifetime.

In some states, homestead must be established by decedent during his life, usually by filing a declaration of homestead in a public office; in other states, probate court has power to set aside real property as homestead.

Amount of homestead exemption is ridiculously small in some states & provides little protection to surviving spouse. But in several states the homestead exemption is substantial & may even exempt the family home regardless of its value. Decedent has no power to dispose of a homestead so as to deprive the surviving spouse of statutory rights therein.

This is right of surviving spouses (& sometimes minor children) to have set aside to her certain tangible personal property of decedent up to a certain value. UPC sets the limit at $10K.

Set aside is usually subject to several conditions & limitations, but, if these are met, decedent usually has no power to deprive surviving spouse of exempt items.

Every state has a statute authorizing the probate court to award a family allowance for maintenance & support of surviving spouse (& often of dependent children). Allowance may be limited by statute to a fixed period (typically 1 year,) or it may continue thereafter while the will is being contested or for the entire period of administration. Allowance is in addition to whatever other interests pass to surviving spouse.

UPC allows reasonable allowance, which canNOT continue beyond 1 yr if estate is inadequate to pay creditors.

example: Sam & Nina are married with 2 kids.

Sam created

$11K inter vivos trust to kids

$10K life insurance naming kids as B

$90K house, joint tenancy with kids

$10K property left to kids

What does Nina get, when all but $10K to kids passes outside of the estate?

King v. King (Ohio Courts of Appeals, 1992)

Election - where spouse elects NOT to take under will but to take a statutory share-- spouse takes as if T died intestate.

Issue: when is gift an advancement?

Husband deeded property to wife. Wife elects against will.

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Seifert v. Southern National Bank of South Carolina (1991)

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Illusory where retain so much control as to look like never parted with property.

Seifert is traditional view followed by Ohio.

fraud test - whether decedent intended to defraud surviving spouse of her elective share.

Sullivan v. Burkin (Mass, 1984)

Rule: treat as part of estate of deceased for purposes of election assets of an inter vivos trust created during marriage by deceased spouse over which he/she alone had general power of appointment (power to revoke or amend), exercisable by deed or by will. Objective test would involve no consideration of the motive or intention of spouse in creating trust. Current trend.

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Legislatures in many states have enacted statutes providing objective criteria for determining what nonprobate transfers are subject to the elective share.

pg. 512

UPC Augmented estate concept: adopted in several states

Includes probated assets, adding donative transfer to or for benefit of others while married to surviving spouse, includes inter vivos trusts, joint tenancies with others during marriage--major exception is life insurance payable to another.

Intestacy: An Estate Plan by Default

Janus v. Tarasewicz (1985)

Where question of survivorship is determined by testimony of lay witnesses, burden of sufficient evidence may be met by evidence of a positive sign of life in one body & absence of any such sign in the other.

Where death process is monitored by medical professionals, their testimony as to usual & customary standards of medical practice highly relevant when considering what constitutes a positive sign of life & what constitutes a criteria for determining death.

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UPC provides that an heir or devisee or life insurance B who fails to survive by 120 hours (5 days) is deemed to have predeceased decedent.

Issue & descendants are people descended from decedent--children, grandchildren, great-children...

per capita - count the heads alive & divide remainder among them. NO state has a per capita system of distribution by intestacy. However, may see in will--I leave all my assets per capita.

per stirpes - 2 meanings

UPC: per capita per representation at each generation: go to first level where anyone alive to take. Those alive get their share. Shares of those who predeceased is divided among all those in next level. i.e., 3 kids only 1 living & 4 grandchildren. Surviving kid gets 1/3 & grandchildren equally split 2/3 left.

To disinherit a child, it is necessary that entire estate be devised to other persons. If there is a partial intestacy for some reason, child will take an intestate share not withstanding such a provision in the will. A testator cannot alter the statutory intestate distribution scheme without giving the property to others.

UPC changes this rule & authorizes a negative will. Barred heir treated as if he disclaimed his intestate share.

In all states, decedent not survived by spouse, descendant, or ancestor, intestate property passes to siblings & their descendants (nieces & nephews take by representation.)

If there are no first-line collaterals, states differ as to who is next in line of succession.

For purposes of inheritance or of determining property rights, a child is treated as in being from the time of conception. Courts have established a rebuttable presumption that normal period of gestation is 280 days. If child claims that conception dated more than 280 days before birth, burden of proof is usually upon child.

Adopted children inherit from adoptive parents. Upon entry of decree of adoption, adopted child loses all rights of inheritance from birth parents & from their natural collateral & lineal relatives. In a few jurisdictions, adoptee can inherit from birth parents.

Where adoptee predeceases his parents, only adoptive parents can take--in all states.

Step-parent adoptions can be different--with inheritance rights of an adopted person varying considerably among states. UPC provides that adoption of a child by the spouse of either natural parent has no effect on

Adult Adoption:

Virtual adoption--no legal adoption, but equity should find an adoption due to circumstances.

Equitable adoption permits an equitably adopted child to inherit from foster parents. On other hand, foster parents (& their relatives) cannot inherit from child. Having failed to perform K, they have no claim in equity.

All jurisdictions permit inheritance from mother, but rules respecting inheritance from father vary. Most permit paternity to be established by evidence of

Uniform Parentage Act, adopted by 1/3 states, built upon concept of parent & child relationship, which is presumed to exist between father & child if:

**Many states have reversed common law presumption of advancement. Lifetime gift is presumed NOT to be advancement unless shown to have been intended as such. UPC presumes gift unless a writing signed when given that gift is an advancement--trend.

Can argue not an advancement but is a gift or in return for services or a loan.

Under UPC, advancement applies where total intestacy or partial & to any heir & requires a contemporaneous writing & does not apply to descendants.

(Note: similar to satisfaction where a will & covered later.)

No one living has an heir, only an expectation of heirs. No heir if have a will.

Expectancy is NOT an interest that law of equity recognized

Equity may recognize an expectancy if ...

Guardianship:

Custodianship:

Available only to persons who create it during lifetime or who die testate, creating it by will.

Trusteeship:

Available only to persons who create it during lifetime or who die testate, creating it by will.

Bars to Succession

Courts in states that have no statute preventing slayer from taking from descent or distribution from estate of victim, have followed 3 different lines of decision:

Almost all states have statutes dealing with the rights of a slayer in the estate of a victim. These statues vary in many details & usually fail to deal with one or more aspects of the problem. i.e., does statute apply to nonprobate transfers, apply to accomplices & instigators, what kind of homicides come within terms of statute (1st degree murder, manslaughter, involuntary manslaughter), if barred--who takes?

Majority view slayer as having predeceased victim or (UPC) having disclaimed the property.

Intestate successor can NOT prevent title from passing to him or her. If heir refuses to accept inheritance, common law treats heirs renunciation as if title had passed to heir & then from heir to next intestate successor.

If person dies testate, devisee can refuse to accept devise, thereby preventing title from passing to devisee. Any gift, whether inter vivos or by will, requires acceptance by donee.

Unexpectedly different tax results between disclaimer of heir versus devisee.

Will: Capacity & Contests

No common law right to make a will--statutorily provided. In almost all states, to make a will a person must be age 18 or over & be of sound mind.

Mental Capacity

Specific requirements for mental capacity are minimal. Decedent only has to have ability to know:

T must have mind & memory relevant to 4 matters mentioned. T must understand significance of act.

Burden of Proof:

Fact that a person has been declared incompetent & put under a conservator does NOT necessarily mean person has no capacity to execute will thereafter. Capacity to make a will is governed by a different legal test & requires less competency than power to make a K or a gift.

One whose property is under a conservatorship may write a valid will if trial court finds that will was written during a lucid interval.

Legal capacity to make a will requires a greater mental competency than is required for marriage.

Person may have sufficient mental capacity to execute a will but may be suffering from an insane delusion so as to cause a particular provision in a will--or perhaps the entire will-- to fail for lack of testamentary capacity. Only part of will caused by insane delusion fails; if entire will caused by insane delusion, entire will fails.

Insane delusion is legal, not psychiatric, concept. Delusion is false conception of reality. Insane delusion--which impairs testamentary capacity--is one to which T adheres against all evidence & reason to contrary.

Law draws distinction between insane delusion & mistake. Insane delusion is a belief NOT susceptible to correction by presenting T with evidence indicating falsity of belief. Mistake is susceptible to correction if T is told truth. General rule--courts do NOT reform or invalidate wills because of mistake, whereas they do invalidate wills resulting from an insane delusion.

If prove insane delusion take by intestacy.

Undue influence may occur where there is a confidential relationship between parties or where there is no such relationship. Proof may be wholly inferential & circumstantial. Influence may be that of a B or that of a 3rd person imputed to B.

Lipper v. Weslow (1963): Test for undue influence--whether such control was exercised over mind of T as to overcome her free agency & free will & to substitute will of another so as to cause T to do what she would not otherwise have done but for such control.

Rules about undue influence complicated in most jurisdictions by nice questions about burdens of proof. Rule often applied is that where:

Burden of proof shifts to person occupying confidential relationship to prove affirmatively absence of undue influence.

Evidence of sexual relationship outside of marriage admissible in undue influence cases--a sexual relationship casts a suspicion of deceit & cautions the court to examine the evidence with unusual care.

Some courts hold that heirs have no standing when they would not take under prior wills. Others hold that heirs can contest the last will even though they may also have to overturn several prior wills in order to take.

No-contest clause provides that a B who contests the will shall take nothing, or a token amount, in lieu of provisions made for B in will. Designed to discourage will contests.

Courts have been pulled in several different directions by conflicting policies.

Majority, UPC & R2, where the lawsuit is determined to be a contest, enforce a no-contest clause unless there is probable cause for the contest.

Minority of jurisdictions enforce no-contest clause unless contestant

Many courts, concerned with appearance of impropriety, have ruled that presumption of undue influence arises when atty-drafter receives legacy, except when atty is related to T. Presumption rebutted only by clear & convincing evidence provided by atty.

Courts have also found the routine practice by an atty to name atty as executor is suspicious & decided that it was unethical for atty-drafter to suggest, directly or indirectly, that atty be named as executor or lawyer for executor.

Fraud

Fraud occurs where T deceived by a misrepresentation & does that which T would not have done had misrepresentation not been made.

Usually said that misrepresentation must be made with both intent to deceive T & purpose of influencing the testamentary disposition.

Provision in a will procured by fraud is invalid. Remaining portion of will stands unless fraud goes to entire will or portions invalidated by fraud are inseparable from rest of will.

Where probate court cannot do justice by refusing probate, will may be probated & then a court with equity powers can impose a constructive trust on wrongdoer, compelling wrongdoer to surrender property acquired by wrongful conduct.

Fraudulently procured inheritance or bequest is invalid only if T would not have left inheritance or made bequest had T known the true facts.

Restatement: Preventing revocation of will & making new will.

Where devisee or legatee under will already executed prevents T by fraud, duress or undue influence from revoking will & executing new will in favor of another or from making a codicil, so that T dies leaving original will in force, devisee or legatee hold property thus acquired upon constructive trust for intended devisee/legatee.

Where legatee has taken property under a will, after agreeing outside will, to devote that property to a purpose intended & declared by T, equity will enforce a constructive trust to effectuate that purpose, lest there be a fraud on T.

R2 of Torts includes intentional interference with an expected inheritance or gift as a valid cause of action. This theory extends to expected inheritances the protection courts have accorded commercial expectancies.

This is not a will contest--seeks to recover tort damages from a 3rd party for tortious interference.

Execution of Wills

Formalities of transfer have several functions:

Formal requirements for execution of wills vary considerably in detail from state to state.

A few states (Ohio, ) permit nuncupative (oral) wills under very limited circumstances. Typically, these wills can be made

Some states only allow for persons in military in time of war.

UPC: ...a will must be:

Recent cases have held lawyer supervising will execution ceremony liable for faulty execution, though some states still retain the privity barrier.

In other states, line of sight rule has been rejected in favor of conscious presence test--witness is in presence of T if T, through sight, hearing, or general consciousness of events, comprehends that witness is in act of signing.

Statute generally require disinterested witnesses. If statute requires 2 witnesses, & 3 witnesses are used with only 2 being a disinterested witnesses will is OK.

Estate of Parsons (1980): Interested witness disclaimed her interest. At the time this witness was witnessing will, she had an interest (albeit a nominal interest, $100)---quintessential function of a subscribing witness is performed when will executed. Disclaimer is nullity because witness had no interest to disclaim. Estate goes by intestacy.

Purging statute--purges or takes away what would go to witness. In some states, witness purged only of benefit witness receives that exceeds benefit witness would have received if will had NOT been executed (that is, the extra benefit.)

Where witness is spouse of B (interested party), courts are split as to whether spouse is interested.

Most states have statutes recognizing as valid a will executed with formalities required by:

Lawyer should draft wills so there is no need to resort to such an act. Hence, careful lawyer in our highly mobile society draws a will & has it executed in a manner that satisfies formal requirements in all states.

See pages 225-226 for procedures, which if followed, make will valid in all states, no matter in which state T is domiciled at the date of execution or at death or where property located.

Self-proving affidavit--typed at end of will, swearing before a notary public that will has been duly executed, is then signed by T & witnesses before notary public, who in turns signs & attaches required seal. If witnesses are dead or cannot be located or have moved far away, self-proving affidavit reciting that all requirements of due execution have been complied with permits the will to be probated. Will is valid without such an affidavit, but affidavit makes it easier to probate the will.

UPC authorizes a combined attestation & self-proving affidavit, so that T & witnesses (& the notary) sign their names only once.

UPC also authorizes self-proving affidavit to be affixed to will already signed & attested, which affidavit must be signed by T & witnesses in front of notary after T has signed will & witnesses have signed attestation clause. 2-step process permitted in more states than is combined attestation clause & self-proving affidavit.

Under UPC, if a will is self-proved, compliance with signature requirements for execution is conclusively presumed. Self-proved will can NOT be attacked on grounds of failure to comply with signature requirements but may be attacked on other grounds such as undue influence or lack of capacity.

Many states have statutes permitting deposit of wills with clerk of probate courts. UPC provides for deposit of will in court for safekeeping--however, this is a rare practice.

Inwood rests on principle that mere false description does NOT make instrument inoperative. False description of property or of the intended recipient may be stricken.

Dispensing power (excused noncompliance) - if intent so clear & convincing that we can do without one of the requirements of execution--can dispense with the item. 3 main requirements:

UPC adopted dispensing power to allow probate court to excuse harmless error in complying with formal requirements for executing or revoking a will.

Mistake of omission--court will NOT allow evidence as to omitted portion

Mistake of inclusion--court may or may not strike--lack of testamentary intent

If execution mistake begin analysis with:

Witnesses NOT required--want to make sure everything else is followed--formal requirements:

UPC - only material portions

In re Estate of Johnson (1981):

Mere fact that T used a blank form, whether will or some other document, does NOT invalidate what would otherwise be valid will if printed words may be entirely rejected as surplusage.

Statutory form wills:

Statutory wills must be signed & attested in same manner as any attested will. Large number of statutory fill-in-wills fail in probate court because they are improperly completed or executed.

Revocation of Wills

Will is an ambulatory document, which means that it is subject to modification or revocation by T during his or her lifetime. All states permit revocation by T during his lifetime. All states permit revocation of will in 1 of 3 ways:

Oral declaration that will is revoked, without more, is inoperative in all states.

If duly executed will is NOT revoked in manner permitted by statute, will admitted to probate.

UPC: Revocation by writing or act

T must be competent--same competency as needed for making a will--to revoke a will.

Sbsequent will can revoke expressly or by inconsistency.

Subsequent document does NOT need to be in same format as previous will to work revocation. i.e., 1st will attested & 2nd holographic--2nd will revokes attested.

Where T destroys/revokes a codicil, will is still probated.

Where T destroys/revokes will, but codicil remains--courts split--

Burn, destroy, tear up or write over words on will--act usually by T, though T can direct other to destroy in their presence.

Rules of presumption:

Presumption of revocation is rebuttable & burden of rebutting is on proponent of will.

Harrison v. Bird (1993):

In absence of statue, will that is lost, or is destroyed WITHOUT consent of T, or is destroyed with consent of T but not in compliance with revocation statute, can be admitted into probate if its contents are proved.

Thompson v. Royall (1934)

T had atty come to her home, with executor, & told them to destroy it. Upon back of will cover & back of codicil a note written by atty & signed by T declared will null & void & is being held by executor to be used as a memo for another will.

To effect revocation of a duly executed will, 2 things are necessary:;

Revocation of will by cancellation within meaning of statute contemplates lines or marks across written parts of instrument or physical defacement, or some mutilation of writing itself, with intent to revoke. If written words used for the purpose, they must be so placed as to physically affect written portion of will, not merely on blank parts of paper on which will is written.

Court wants notation to touch words of will & codicil--on back of document is NOT enough--MAJORITY.

Writing on back would have been valid if it had been attested like a will. OR if T had written cancellation it could have been upheld as holographic will. Could also apply substantial compliance or dispensation.

UPC & statutes of a number of states authorize partial revocation by physical act.

In several states will cannot be revoked (Ohio) in part by an act of revocation, it can be revoked in part only by subsequent instrument. Reasons for prohibiting a partial revocation by physical act:

In state allowing partial revocation, if estate divided among 4 beneficiaries & T revokes gift to one B (by marking out there name), state may swell remaining Bs share to 1/3 or treat 1/4 revoked as passing by intestate.

Dependent relative revocation--if T testator purports to revoke his will upon mistaken assumption of law or fact, revocation is ineffective if T would NOT have revoked his will had he known the truth.

Usual case--T destroys his will under belief that new will is valid but for some reason new will is invalid. Court will cancel revocation & probate destroyed will.

Example:

Courts have set limits on DRR. With rare exceptions, courts have held that DRR applies only

Carter v. First United Methodist Church of Albany (1980)

Will in 1963 properly attested. T used will to note proposed changes in pencil & also began a handwritten document that was unsigned & unwitnessed. Had told her atty that she did not intend to revoke her will by scratching thru some of its provisions & by writing out the proposed changes.

Mere fact that T intended to make new will, or made one which failed of effect, will not alone, in every case, prevent a cancellation or obliteration of a will from operating a revocation. If it is clear that cancellation & making of new will were parts of one scheme, & revocation of old will so related to making of new as to be dependent upon it, then if new will be not made, or if made is invalid, the old will, though canceled, should be given effect, if its contents can be ascertained in any legal way.

1st will revoked by second will. T then physically destroys 2nd will. What happens:

Estate of Alburn (1963):

Usual situation of DRR arises where T executes 1 will & thereafter attempts to revoke it by making a later testamentary disposition for some reason proves ineffective.

Unusual situation--T revokes later will under mistaken belief that by so doing he is reinstating a prior will. DRR is invoked to render revocation ineffective.

Here, T revoked 2nd will with intent to revive 1st will. However, state subscribes to doctrine of revival that 1st will can only be revived if reexecuted. Court then applies DRR to bring back to life will #2 than die intestacy--shown by fact that legatees under will 1 & 2 are different than who her heirs would have been.

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UPC, if subsequent will wholly revoked, previous will itself revoked by physical act, presumption that previous will remains revoked. If subsequent will that partly revoked previous will is itself revoked, presumption is that previous will is revived.

These revocation statutes ordinarily apply only to wills, not to life insurance policies, pension plans, or other non-probate transfers.

UPC applies to non-probate transfers as well as to wills.

If state revocation-by-divorce statute does NOT apply to life insurance proceeds, life insurance proceeds will, according to most cases, pass to divorced spouse unless divorce property settlement expressly proves that spouse surrenders all rights to collect insurance proceeds.

Components of a Will

Possible for documents & acts NOT executed with testamentary formalities to have effect of determining who takes what property belonging to T. 2 doctrines permit extrinsic evidence to resolve identity of persons or property:

Not to be confused with following:

Difference between republication by codicil & incorporation by reference:

Doctrine of Incorporation by Reference--

UPC: Any writing in existence when a will is executed may be incorporated by reference if language of will manifests this intent & describes the writing sufficiently to permit its identification.

Clark v. Greenhalge (1991)

elements:

document must be in existence at time will executed

document identified clearly in will

intent of T to incorporate that document

Used where intent of T is to retain right to alter & amend bequests of tangible personal property in her will, without having to formally amend the will. However, doctrine does NOT work this way--only those entries made at time will executed valid. Note: UPC allows this type of living document--though very unusual.

Court may invalidate entire document if amendments were made after date of execution, or just delete those extra entries.

Note: a document incorporated by reference becomes part of probate files, open to public.

Doctrine of incorporation by reference is widely accepted with a few exceptions.

Acts of Independent Significance--

If Bs or property designations are identified by acts or events that have a lifetime motive or significance apart from their effect on will, gift will be upheld under doctrine of acts of independent significance.

Contracts Relating to Wills

Person may enter into a K to make a will or a K NOT to make a will. Contract law applies. K B must sue under law of K & prove valid K. After K becomes binding, if party dies leaving a will NOT complying with K, will is probated but K B entitled to enforce K by having a constructive trust impressed for his benefit upon estate or devisees of defaulting party.

Minority--oral K to make a will is specifically enforceable provided terms are proved by clear & convincing evidence, rendition of services is wholly referable to K, & services are of such peculiar value to promisor as not to be estimated or compensable by any pecuniary standard.

Questions respecting Ks NOT to revoke a will typically arise where husband & wife have executed a joint will or mutual wills.

Mutual wills - separate wills of one or more persons that contain similar or reciprocal provisions.

Joint and mutual will - term commonly used by courts to describe joint will that devises property in accordance with K. In this context, mutuality refers toK & NOT to reciprocal provisions of separate wills.

No legal consequencess peculiar to joint or mutual wills unless they are executed pursuant to K between Ts not to revoke their wills. Initial problem is proof of K. Most courts hold that a K not to revoke is NOT enforceable unless it is proved byclear and convincing evidence and that the mere execution of a joint will or of mutual wills does NOT give rise to a presumption of K.

Danger of a lawsuit can be reduced by inserting in every joint or mutual will a provision declaring that the will was to was NOT executed pursuant to a K.

UPC: execution of joint will or mutual wills does NOT create presumption of K NOT to revoke will or wills.

Shimp v. Huff (1989)

H & W prepare joint will. After W dies, H seeks declaratory judgment seeking declaratory relief requesting right to execute new last will & testament. Holding: will revokable but K under which will executed might be specifically enforced in equity or damages recovered upon it at law.

H dies without making a new will. He leaves 2nd wife who was not provided for in will & she files for election. Court allows.

3 theories in these cases:

Notes:

Survivor cannot dissipate the estate or alienate by inter vivos transfers to defeat K.

Surviving spouse has life estate with powers to consume. Inter vivos gifts by survivor can be set aside if NOT made in good faith.

Under law of K, B does NOT have to survive to time of performance but may, if he dies before that time, pass his K rights to his heirs or devisees.

Interpretation of Wills

Admission of Extrinsic Evidence

rules:

plain meaning rule--no extrinsic evidence allowed

allow extrinsic evidence for interpretation (not reformation)--

Mahoney v. Grainger (1933)

Rule: Only where testamentary language is NOT clear in its application to facts that evidence may be introduced as to circumstances under which T used that language in order to throw light upon its meaning. Where no doubt exists as to property bequeathed or identity of B there is no room for extrinsic evidence; thewill must stand as written.

Extrinsic evidence may be allowed in where execution is in controversy--i.e., requisite testamentary intent

Arguments to bring in extrinsic evidence:

patent ambiguity--ambiguous on its face. In some states, evidence is NOT admissible to clarify ambiguity, & wills fails, but courts have often disposed of problems by simply construing language of will without aid of extrinsic evidence.

Whether an ambiguity is patent or latent may depend upon who the reader is.

Admission of evidence to clarify latent ambiguity first began in cases of equivocation--where description fits 2 or more external objects equally well (i.e., devise to my niece Alicia, when testator has 2 nieces named Alicia.)

Courts reasoned that extrinsic evidence did NOT add anything to will, which would be forbidden; evidence merely made terms of will more specific.

Fleming v. Morrison (1904)

T had will drawn up leaving everything to Fleming. T & atty sign & then T tells atty that this is a fake will for purpose of getting Fleming to sleep with T. Then will is attested to by 2 witnesses unaware of purpose of will. T dies & will is submitted to probate. Will NOT admitted to probate because state requires 3 witnesses & only 2 signed when proper intent existed--would have been duly executed had T subsequently acknowledged instrument before 3 in place of 2.

Holding: T did NOT have necessary intent to make will. It is competent to contradict by parole the solemn statements contained in an instrument that it is a will.

Conn Junior Republic v. Sharon Hospital (1982)

Scrivener error leading to gifts to one set of charities when had been advised to be given to other set of charities.

Evidentiary rules apply equally to proceedings to admit a will to probate & will contruction proceedings.

Dissent: No reason to treat mistake case differently from fraud or undue influence case. In each instance, EE required to demonstrate that will, despite formally proper execution, misrepresents true intent of T.

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In some recent cases, court have remedied mistakes by the scrivener.

Estate of Russell (1968)

Court: Extrinsic evidence always may be introduced initially in order to show that, under the circumstances of the particular case, seemingly clear language of a will describing either subject of, or object of the gift, actually embodies a latent ambiguity. Once shown, such ambiguity may be resolved by extrinsic evidence.

TREND--If no ambiguity found through EE, disregard EE; else if ambiguity shown use the EE to explain. Does not matter whether ambiguity is patent or latent.

Chester argued this is a class gift,

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Doctrine of probable intent --to fill gaps in dispositive provisions in wills. If contingency for which no provision is made in the will occurs, court studies family circumstances & plan of testamentary disposition set forth in will. Then court places itself in position of T & decides how T probably would have responded to contingency had he envisioned its occurrence.

Only used by NJ. No other jurisdiction so boldly reforms drafting oversights.

Death of B before Death of Testator

The Doctrine of Lapse

If devisee does NOT survive T, devise lapses (fails.) All gifts made by will are subject to requirement that devisee survive T, unless T specifies otherwise.

Void devise--where devisee is dead at time will executed. Same general rules govern disposition of void devises as govern lapsed devises.

In nearly all states, antilapse statutes have been enacted which, under certain specified circumstances, substitute another B for predeceased devisee. Generally, anti-lapse laws apply equally to void & lapse devises.

Definitions:

In majority of states, common law rule regarding lapse of residuary where more than one B has been overturned by statute or judicial decision, & is clearly on the way out--Trend--all to survivor.

Class gift--If devise is to a class of persons & one member of the class predeceases, surviving members of class divide the gift.

In re Estate of Ulrikson (1980)

Residuary estate given to brother & sister or survivor of them--but both siblings predecease T, one leaving 2 kids. T had 2 other siblings who predeceased execution of will. T left $1K to all her nieces & nephews & 2 additional nieces by marriage. Court applied anti-lapse statute because T showed a preference for these 2 siblings--& T never contemplated both predeceasing her. Preference indicates antilapse statute applies.

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Note: classic per stirpes system of intestacy will usually come to the same result as the antilapse statute.

Requirement that B survive T, in order to take, applies only to wills. It does NOT apply under K law, where 3rd-party Bs of K are NOT required to survive benefactor & may pass their K rights to their heir or devisees.

Antilapse statutes do NOT apply to joint tenancies.

Jackson v. Schultz (1959)

If this will is construed elsewise, it will escheat to the state.

But a class label is NOT necessary for a class gift. Bs described by their individual names, but forming a natural class, may be deemed a class gift if the court decides, after admitting extrinsic evidence

Dawson v. Yucas (1968)

One nephew predeceases T & surviving nephew claims entire 1/5 interest as member of class.

Note: Antilapse statute does not apply as nephews by marriage--not proper Bs under antilapse statute (here & in majority of states.)

This is NOT a class. Determining whether devise is to class or to individuals depends upon language of will. Fatal here is that T individually names Bs & specifically gives