Академический Документы
Профессиональный Документы
Культура Документы
Class Notes
Class Notes
Teaches multi-jurisdictional, not just Florida law
Office hours are early and late. Office is at the main Regions bank.
Use email in the Syl as this is his personal email
CALI exercises have to be 85% or better
No copies of finals on reserve
Two days with no class – September 6th and September 11th
Estates
A matter of probate to transfer property from Party A to Party B
You can dye with a Will, Trust, Government Plan (they get 50%)
Section A: The Power to Transmit Property at Death: Its Justification and Limitations
1. The Right to Inherit and the Right to Convey
a. Hodel v. Irving, 481 U.S. 704 (1987)
i. Issue: whether a person has a right to transmit their property at death?
ii. Historical Note: Until the 1980s, there was no natural or constitutional right to convey or inherit property at
death. Convey: transfer property to another. Inherit: access to decedent’s property.
1. Irving Trust Co. v. Day.
iii. Facts: Indian lands were parceled and allotted to members of the tribes. The lands were held in public trust.
The allottees were granted the ability to devise their property by inheritance and post-1910 by will. The
allotments were severely fractioned to the point where the use of land was no longer economically
beneficial.
1. § 207 of the Indian Land Consolidation Act held that interests that met the following two
requirements would be escheated to the Tribe: (1) interest is less than 2% of the acreage, and (2)
interest earned to the owner is less than $100. Devise and inheritance was essentially eliminated
for these parcels of land.
2. Plaintiffs claim that § 207 is a taking under the 5th Amendment i.e. a right of decedent to transmit
the property and as inheritors, they have standing to protect the interest of the decedent.
iv. A taking is present in this case because the government does not have the right to transmit property at death
is a valuable property right.
v. The right to transmit property is an identifiable right and, if taken away, compensation must be paid
vi. This case also started the groundwork for transferring the property to other people – this started the ball
rolling
Non-probatable property
Can pass under an instrument, other than by a will, or intestate
Joint-tenancy: can be non-probatable property (even if it looks like probatable property)
Example - $1MM in money market with two persons on it. If one dies, the other party gets all rights to the undivided
whole
The concept of joint tenancy is that you jointly own the undivided whole of the property
For tax purposes, one half of the value of the account would be assessed for taxes from the estate
In effect, half the value goes to the estate, but for taxation purposes only
Whatever the value of anything is, it is triggered to the death of the decedent (including for taxes and interest)
The Federal Tax Exemption – if you go over a specified amount, you are taxes at 35% to 55%
Florida has no state estate tax, others tack on to the Federal estate tax
IRAs
Contracts with Payable on Death Provisions
IRAs, 401ks, pension plans
Legally married spouses (and in some states for partners), the first lien beneficiary is the spouse
The only way you cannot have your legal spouse not to be the beneficiary, in Florida, you must file a form with their
signature approving this
Interests in Trusts
There are about 35 kinds of trusts out there
Benefits of a trust is minimization of taxes and to avoid probate
If it is a contract payable on death, the decedent can name a person in the trust as the recipient
If you are single, and don’t do the above, the trust enters the estate and becomes subject to probate
Section A.
1. Test of Mental Capacity
a. Elements [note: test of capability NOT of actual knowledge]
i. The testator must be an adult (18 years or older)
1. In many states, those who are under 18 may make a will if they are married or emancipated.
ii. And “must be capable of knowing and understanding in a general way
1. the nature and extent of his or her property,
2. the natural objects of his or her bounty (family members i.e. # children, grandchildren, etc.),
3. the disposition that he or she is making of that property, and
4. must be capable of relating these elements to one another and forming an orderly desire
regarding the disposition of the property.”
b. In re Estate of Wright
i. Decedent had a real estate agent draft his will giving one of his properties to a friend, another to his
daughter, and the last one to his granddaughter. To other members of the family he conveyed $1. The
daughter brought an action to find the father incapable at the time the will was drafted.
ii. PH: The trial court found that the father had been mentally incapable at the time the will was drafted, the
Sup. Ct. of California reverses.
iii. (1) Close scrutiny on testamentary witnesses who later try to say that the person was incapable at the time of
the signing. There is close scrutiny because part of what the witness is attesting to is the capability of the
signer. (2) The daughter placed several witnesses on the stand to try to show that the father was not
mentally capable. However, because none of the witnesses was able to recount anything other than isolated
acts, it was not sufficient.
1. Witnesses – certify that the testator was competent and then show up to court to take the
certification back
iv. Rule: Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies,
moral or mental irregularities or departures from the normal UNLESS they directly bear upon and have
influenced the testamentary act.
c. Note
i. For lawyers, to draft a will for an incompetent person is a breach of legal ethics – fraud on the system to do
so – fire the client
ii. Lucid interval
1. Capacity to make a will is governed by a different legal test and requires less mental ability than to
manage one’s investments, to make a contract, or to make a gift
2. A person may be found to be incapacitated but a will may still be valid if executed during a “lucid
interval”
iii. Juries rule against the validity of the will MOST of the time
2. Why require mental capacity? (explanations)
a. The will should be given effect only if it represents the testator’s true desires
b. A mentally incompetent man or woman is not defined as a “person”
c. To protect the decedent’s family
d. To a large extent, the public acceptance of law rests upon a belief that legal institutions, including inheritance, are
legitimate, and legitimacy cannot exist unless decisions are reasoned.
e. Assures a sane person that the disposition the person desires will be carried out even if the person later becomes
insane and makes another will
i. Gives a person of sound mind the advantage of being able, while in a rational mind, to choose what will
happen to his property in the future and to have confidence that his choice will be carried out
f. May protect society at large from irrational acts
g. May protect a senile or incompetent testator from exploitation by cunning persons
3. Insane Delusion
a. Overview
i. Definition: a delusion is a false conception of reality and is a legal, not psychiatric, concept
1. often involve some false belief about a member of the testator’s family
2. capacity is generally present but the delusion affects a portion of, or all of, the will (unlike a lack of
capacity which always results in the revocation of the whole will)
a. v. mistake
i. mistake is correctable i.e. testator does not know something which affects a
disposition in the will, no post-mortem fact-fixing
ii. delusion – rejection of any change of mind
ii. Rules
1. majority: a delusion is insane even if there is some factual basis for it if a rational person in the
testator’s situation could not have drawn the conclusion reached by the testator
2. minority: if there is any factual basis at all for the testator’s delusion, it is not deemed insane
iii. If there is an insane delusion
1. only the part of the will caused by the insane delusion fails
2. if the entire will was caused by the insane delusion, the entire will fails
3. if insane delusions are shown, but they do not affect the dispositions, then the entire will stands
b. In re Strittmater (NJ 1947)
i. Deceased was an unmarried woman aged 48 years. She left her estate to the National Women’s Party. In
her later years, it seems that she had a split personality disorder and a strong contempt for men, which she
noted in the margins of books and in other written documents. Her personal physician testified of the type
of insanity the deceased suffered.
ii. Issue: whether Strittmater suffered from an insane delusion.
iii. Steps
1. Does she have capacity generally?
2. Did she have an insane delusion?
a. According to the court, the delusion is a hatred of men
b. Little evidence of the delusion
3. Did the insane delusion affect the disposition of the will?
a. How did the delusion affect the will?
i. The court assumes that because the property of the decedent went to NWP, her
delusion caused her to make the gift.
b. Little or nonexistent evidence that the delusion caused the gift.
iv. (1) A history of insanity was established by the evidence which included memoranda and comments written
by decedent on the margins of books and on pictures. Treating physician testimony shows that the decedent
had been ill for many years. (2) There was no clear commitment to the National Women’s Party even
though she did volunteer for the group once a week, there were comments in her writings that showed she
did not find the party to be worthwhile. Further, the time of death was only one month after she changed the
will. The lower court’s judgment is affirmed.
v. Problem – overall sense of the court: male dominated. The National Women’s Party was extreme at the
time.
c. In re Honigman
i. Frank Honigman died, survived by his wife. A month before his death, he cut off his wife with a life use of
her minimum statutory share plus $2500 (minimum statutory share – life estate in 1/2 plus $2,500). [This is
different from an intestate share – almost always more than the statutory share.] He gave $5,000 to each of
three named grandnieces. The remainder he left to his living brothers and sister per stirpes. The will was
offered for probate and the widow filed objections. The main issue was whether Frank was of sound mind
when he crafted the last will. The jury answered in the negative and the court made a decree denying
probate to the will. The Appellate Division reversed upon the law and the facts, and probate was directed.
ii. Issue: whether Frank was of sound mind when he crafted the will.
1. Did he have capacity generally?
2. Did he have an insane delusion in thinking the wife was cheating on him?
3. Did the insane delusion affect the disposition of the will?
iii. The proof amply supports the jury findings that the testator was suffering from an unwarranted delusion that
his wife was unfaithful to him, which condition affected the disposition made in the will. Frank was subject
to many medical ailments and random acts – he went to Europe without his wife and only told her of the trip
by a note. When he returned, he moved out of the marital home. To contradict the proposition of an
irrational obsession, the estate representative sought to demonstrate the reasonable basis for Frank’s belief.
The court states that the jury had the right to disregard such proof – in any case, the necessary proof is not
whether the wife was actually unfaithful to him, but whether Frank had any reasonable basis for believing
she was. In any case, the province of the jury should not be impeded upon. Furthermore, inadmissible
evidence was admitted. The court orders a new trial
1. Majority: Will is bad when its dispository provisions might have been, or was affected by an
insane delusion (majority rule)
iv. Dissent: a person’s doubts, if not well founded, do not immediately become lunacy. The testator should be
allowed to do as he wishes, unreasonable or unjust provisions are not required.
1. Minority: Must show evidence of causation between the delusion and the unnatural
disposition
d. Difference between an insane delusion and a mistake
i. An insane delusion is a belief not susceptible to correction by presenting the testator with evidence
indicating the falsity of the belief
ii. A mistake is susceptible to correction if the testator is told the truth
1. Courts do not invalidate a will if there is a mistake.
e. Living probate or Ante-mortem probate
i. Statutes in Arkansas, North Dakota, and Ohio permit probate of a will during the testator’s life which
authorize a person to institute during life an adversary proceeding to declare the validity of a will and the
testamentary capacity and freedom from undue influence of the person executing the will
1. all beneficiaries named in the will and all testator’s heirs apparent must be made parties to the
action
ii. Authenticated will in civil law countries
Section C. Fraud
1. Overview
a. Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have
done had the misrepresentation not been made.
i. The misrepresentation must be made with the intent to deceive the testator and the purpose of influencing
the testamentary
ii. Any provision procured by fraud is invalid.
b. Where the probate court cannot do justice by refusing to probate, the will may be probated and then a court with
equity powers can impose a constructive trust on one or more of the beneficiaries to remedy the unjust enrichment
caused by the fraud.
2. Types of Fraud
a. Fraud in the inducement. Occurs when a person misrepresents facts, thereby causing the testator to execute a will, to
include particular provisions in the wrongdoer’s favor, or to refrain from executing or revoking a will.
i. A fraudulently procured inheritance or bequest is valid only if the testator would not have left the
inheritance or made the bequest had the testator known the true facts.
b. Fraud in the execution. Occurs when a person misrepresents the character or contents of the instrument signed by the
testator, which does not in fact carry out the testator’s intent.
i. Puckett v. Krida (1994). Live-in nurses convinced testator that her niece, who had power of attorney, was
mismanaging her property and planning to send testator to a nursing home (testator’s greatest fear). Testator
executed a deed and a will favoring the nurses. The trial court set aside both the deed and the will as
products of fraud and undue influence. The Court of Appeals affirmed, holding that the nurses had a
confidential relationship with testator for two reasons: (1) they were testator’s caregivers, and (2) one of the
nurses had a power of attorney. The confidential relationship along with the underlying encouragement of
testator’s false belief, was enough to raise a presumption of undue influence and fraud. The presumption
was not rebutted.
Section D. Duress
1. Definition.
a. A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that
coerced the donor into making a donative transfer that the donor would not otherwise have made. Restatement
(Third) of Property § 8.3(c)
b. Donative transfers compelled by duress are invalid.
2. Latham v. Father Divine (1949)
a. Mary Sheldon Lyon died in 1946 leaving a will, executed in 1943, devising almost her whole estate to Father Divine
and some of his followers. Plaintiffs in this case are first cousins of testator who claim that testator had, on numerous
times, expressed her intent to draft a new will to leave a portion of her estate to her first cousins. They further claim
that by reasons of fraud, undue influence and duress, the defendants prevented the testator from executing a new will
and went as far as killing testator through an operation performed by a doctor they hired.
b. Supreme Court of New York dismissed the case, Court of Appeals reverses.
c. Whether Plaintiffs are entitled to equitable relief in the form of a constructive trust.
d. Equitable relief is available to plaintiffs. “Where a devisee or legatee under a will already executed prevents the
testator by fraud, duress or undue influence from revoking the will and executing a new will in favor of another or
from making a codicil, so that the testator dies leaving the original will in force, the devisee or legatee holds the
property thus acquired upon a constructive trust for the intended devisee of legatee.
i. A constructive trust may be erected whenever necessary to satisfy the demands of justice since such a trust
is merely the formula through which the conscience of equity finds expression.
1. The actual will is not invalidated since it had already been probated, however, to reach the benefits
of that probate, a constructive trust is created to benefit those who were initially entitled to the
property
b. UPC
i. UPC § 2-502 Execution; Witnessed Wills; Holographic Wills
1. (a) Except as provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:
a. (1) in writing;
b. (2) signed by the testator or in the testator’s name by some other individual in the
testator’s conscious presence and by the testator’s direction; and
c. (3) signed by at least two individuals, each of whom signed within a reasonable time after
he witnessed either the signing of the will as described in paragraph (2) or the testator’s
acknowledgment of that signature or acknowledgment of the will.
2. (b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not
witnessed, if the signature and material portions of the document are in the testator’s handwriting.
3. (c) Intent that the document constitute the testator’s will can be established by extrinsic evidence,
including, for holographic wills, portions of the document that are not in the testator’s handwriting.
ii. §2-505
1. (a) Any person generally competent to be a witness may act as a witness to a will.
2. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness
iii. In re Groffman (1969, High Court of Justice, England)
1. Testator died three years after executing a will at the home of the Blocks. At his death, Groffman’s
widow challenged the will. If the will had been validly executed, Groffman’s children from his
first marriage would share in the estate, but if the will were invalid, his widow would take the
entire estate in intestacy. The dispute centered on the fact that Groffman and both witnesses were
not present together when Groffman acknowledged his signature.
2. The statute allowed the testator to either acknowledge his prior signature to both witnesses at the
same time or to sing the will before both witnesses. Although Groffman asked his fried together to
witness his will, he did not acknowledge his signature to them both simultaneously.
3. The court refused to admit the will to probate. While the document does represent the testamentary
intentions of the deceased, the court is bound by the statute.
c. Stevens v. Casdorph (W. Va. 1998)
i. The Casdorphs (decedent’s nephew and his family) took decedent to Shawnee Bank in W.Va. so that he
could execute his will (under which decedent leaves everything to the Casdorphs). Decedent asked Pauley a
bank employee and public notary to witness the execution of his will. Pauley took the will to two other
bank employees to sign as witnesses. However, the two other employees did not actually see decedent place
his signature on the will. Ps in this case are decedent’s nieces. They argue that the will was not properly
executed and should therefore be voided.
ii. Requirements of W.Va. statute
1. Signed by the testator
2. signed by two competent witness, present at the time in the presence of the testator and of each
other
iii. Substantial compliance
1. Ds argue that there was substantial compliance with the statute’s requirements, insofar as everyone
involved knew what was occurring.
a. Trial court found substantial compliance because everyone in the bank knew what testator
was doing
2. However, the mere intent by a testator to execute a written will is insufficient
a. Narrow exception
i. If a witness acknowledges his/her signature on a will in the physical presence of
the other subscribing witness and the testator, then the will is properly witnessed
within the terms of W.Va. code.
iv. Dissent
1. Majority worships form over substance and thus create only a harsh and inequitable result contrary
to the indisputable intent of testator.
2. A narrow, rigid construction of the statute should not be allowed to stand in the way of right and
justice, or be permitted to defeat the testator’s disposition of his property.
d. Notes
i. Presence
1. Line of sight test
a. The testator does not actually have to see the witnesses sign but must be able to see them
were the testator to look
i. Exception for blind persons
2. Conscious presence test
a. The witness is in the presence of the testator if the testator, through sight, hearing, or
general consciousness of events, comprehends that the witness is in the act of signing.
3. Note: UPC § 502(a) dispenses with the requirement that the witness sign in the testator’s presence
ii. Order of Signing
1. The testator must complete his signature while both witnesses are present.
2. Compare with a court upholding a will if the testator and the witnesses all sign while assembled in
a room, regardless of the order of signing
iii. Signature
1. Using an “X” in the place of a name, someone helping with the signature, digitized signature
a. Any other symbol or methodology executed or adopted by a party with intention to
authenticate a writing
2. Sick persons who cannot hold the pen and guides the hand
a. Is that a valid signature?
i. Depends. If the person asks for help, then it is generally valid
iv. Addition after signature
1. Subscription – at the foot or end of the will
a. Any additions below the subscription would not be valid
i. If there is anything written below the signature, the devise may be void. An
appointment of a fiduciary may be alright.
ii. What is a term was added afterwards?
v. Videotaped or electronic wills
1. Requirements vary by state
a. Substantial compliance or the dispensing power may be enough to validate a will.
vi. Attestation clause
1. Written statement at the end of a will (p. 217 par. 7) under the signature line of the testator.
2. Makes out a prima facie case that the will was duly executed; thus the will may be admitted to
probate even though the witnesses predecease the testator or cannot recall the events of execution.
vii. Delayed attestation
1. UPC provides that witnesses must sign within a reasonable time
viii. Notarization
1. most states requires that a deed be notarized to be recorded in the county recorder’s office;
witnessing does not suffice
e. Estate of Parsons (California 1980)
i. Decedent executed her will in the presence of three persons, who signed the will as attesting witnesses. Two
of the witnesses were named in the will as beneficiaries. The will was admitted to probate on the petition of
the executors. One of the beneficiary witnesses filed a disclaimer of her bequest. Appellants claim that that
the execution of the will violated § 51 because there were not two disinterested subscribing witnesses to the
will.
ii. Whether a subscribing witness to a will who is named in the will as a beneficiary becomes disinterested
within the meaning of Probate Code 51 by filing a disclaimer of her interest after the testatrix’ death. A
disclaimer is ineffective for that purpose
iii. Reasoning
1. The will would be void at the time of execution if there were not two disinterested attesting
witnesses to the will. The function of a witness is performed when the will is executed and the
code requires that at least two of the subscribing witnesses are disinterested.
a. The purpose of the statute is to protect the testator from fraud and undue influence at the
time of execution, by ensuring that at least two persons are present who are disinterested.
2. The relate back function relates back only to the death of the testator (which is when the interest is
actually created) and not to the day the will was signed.
iv. Holding: Probate Code § 51 looks solely to the time of execution and attestation of the will, it follows that a
subsequent disclaimer will be ineffective to transform an interested witness into a “disinterest” one within
the meaning of that section.
1. Any change to the code must be made by the legislature.
f. Purging Statutes
i. UPC § 2-505
1. (a) Any person generally competent to be a witness may act as witness to a will.
2. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
ii. California Probate Code § 51:
1. Generally, such a statute purges the witness only of the benefit the witness receives that exceed the
benefit the witness would have received if the will had not been executed
iii. Massachusetts purging statute
1. Any person of sufficient understanding shall be deemed to be a competent witness to a will,
notwithstanding any common law disqualification for interest or otherwise; but a beneficial devise
or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless
there are two other subscribing witnesses to the will who are not similarly benefited thereunder.
iv. Other states void the devise of the interested witness altogether or void the entire will altogether
g. In re Pavlinko’s Estate (Pa. 1959)
i. Vasil and Hellen Pavlinko signed their wills prior to Hellen’s death. However, they signed each other’s
wills. Hellen’s will was never probated. Upon Vasil’s death, the executor attempted to probate the will but
to no avail.
ii. The will is a nullity. The will Vasil signed cannot be probated because it does not bear his name. The entire
will would have to be rewritten to allow probate. The paper which recited that it was the will of Hellen
Pavlinko and intended and purported to give Hellen’s estate to her husband could not be probated as the will
of Vasil and was a nullity.
iii. Dissent. J. Musmanno
1. The intent of the testator must be gathered from the four corners of his will.
2. The will should have been allowed probate.
h. In re Snide (NY 1981)
i. Harvey and Rose signed each other’s wills by mistake. Rose introduced the will signed by Harvey to be
probated. The court reverses the lower court and orders the will to be probated.
ii. Reasoning
1. Genuine mistake. The testators followed the normal executory tradition. The only mistake was
that they signed each other’s wills, which were identical except for where the names.
2. The argument of lack of testamentary intent is overcome by the fact that the dispositive provisions
in both wills, except for the names, were identical.
a. The instrument was executed in the manner required by statute and should be admitted to
probate.
3. There is no chance of fraud, and the refusal to read the wills together would serve merely to
unnecessarily expand formalism, without any corresponding benefit.
iii. Dissent. J. Jones
1. Precedent should reign despite the unfair result.
iv. Options the court has in this case
1. probate the will the decedent intended to sign but did not
2. probate the will the decedent did sign and then reform its terms to make sense
i. Curative Doctrines
i. UPC § 2-503 Harmless Error
1. Although a document or writing added upon a document was not executed in compliance with § 2-
502, the document or writing is treated as if it had been executed in compliance with that section if
the proponent of the document or writing establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute
a. (i) the decedent’s will,
b. (ii) a partial or complete revocation of the will,
c. (iii) an addition to or an alteration of the will, or
d. (iv) a partial or complete revival of his or her formerly revoked will or of a formerly
revoked portion of the will.
2. If a state does not recognize holographic wills, a holographic will in the states that adopt § 2-503
will likely admit holographic wills for probate.
ii. In re Will of Ranney (NJ 1991)
1. Self-proving wills:
a. Two step: a separate affidavit is appended to the end of the will; the witnesses (and
sometimes the testator) must sign the affidavit in addition to signing the will itself, after
which the affidavit is notarized.
b. One step: the testator and the attesting witnesses sign only once, with the language of an
affidavit being folded into the attestation clause, after which the will is notarized.
2. Lawyers omitted the attestation clause and used instead an affidavit designed for a two-step
proving will. When the witnesses signed the document, they did not attest to the execution of a
will but rather signed an affidavit swearing that they had previously signed their names as
witnesses during a stage in the execution ceremony that never actually occurred. Although the
subject affidavit was executed simultaneously with the execution of the will, the affidavit refers to
the execution of the will in the past tense and incorrectly states that the witness had already signed
the will. Testator’s wife contests the will.
3. The Appellate Division declined to hold that the placement of the witnesses’ signatures is
immaterial, it ruled that the self proving affidavit was part of the will and that the witnesses’
signatures on the affidavit constituted signatures of the will.
4. Holding: The signatures on the subsequently-executed self-proving affidavit literally satisfied the
requirement of the statute as signatures on the will. However, the will may be admitted to probate
if it substantially complies with these requirements.
5. Reasoning
a. Self-proving affidavits and attestation clauses serve different functions. Attestation
clauses facilitate probate by providing prima facie evidence that the testator voluntarily
signed the will in the presence of the witnesses. Self-proving affidavits, by comparison,
are sworn statements by eyewitnesses that the will had been duly executed. The
difference is that in an attestation clause, the attestant expresses the present intent to act as
a witness, but in the affidavit, the affiant swears that the will has already been witnessed.
Therefore, there is no literal compliance with the statutory requirements.
b. Substantial compliance. Functional rule designed to cure the inequity caused by the
formalism of the law of wills. The purposes of wills are frustrated when strict formalism
is enforced. If the formalities surrounding the execution of the will, when formal defects
occur, proponents should prove by clear and convincing evidence that the will
substantially complies with statutory requirements.
i. A self-proving affidavit cannot serve as attestation and self-proof. Therefore,
there must still be a hearing in solemn form in which the court may determine
that the substantial compliance with the statutory requirements was
accomplished.
ii. This case extends the substantial compliance the most.
iii. In re Estate of Hall
1. Husband and wife decided to have a joint will drafted. They asked their attorney whether they
could make the draft of the will with all the changes a legal will until the copy is finalized. The
only persons that signed the will were the husband and wife and the attorney who notarized. Upon
the husband’s death, the will was contested solely on its form and the heir that contested sought to
introduce the prior will of the husband. Husband had told the wife to tear the old will upon
returning from signing the joint will.
2. Holding: the will should be admitted to probate
3. Reasoning
a. Exception to the general rule that the will must follow the statutory requirements of
signing
i. The proponent of the will must establish by clear and convincing evidence that
decedent intended the document to be his will (same as under § 2-503)
1. the joint will specifically revoked all previous wills and codicils made
by either party
2. Husband told wife to destroy the original will
4. Practitioner’s Pointer: Never draft a holographic will
iv. Notes
1. Substantial Compliance v. Dispensing Power
a. Substantial Compliance: if there is clear and convincing evidence (generally the highest
evidentiary standard in civil litigation) that the purposes of formalities – the evidentiary,
cautionary, protective, and channeling functions – were served despite a defective
execution, the will is admitted to probate.
b. Dispensing Power: provides for the probate of a document that was not properly executed
if the court is satisfied that there can be no reasonable doubt that the deceased intended the
document to constitute his will.
i. Advantage: the courts read into their substantial compliance doctrine a near-miss
standard, ignoring the central issue of whether the testator’s conduct evidenced
testamentary intent.
2. Holographic Wills
a. Overview
i. A holographic will is a will written by the testator’s hand and signed by the testator; attesting witnesses are
not required
1. Problems
a. The nature of the requirement that the testator sign the holograph,
i. A signature is required but a holograph that is not signed at the foot of the
document may raise a doubt about whether the decedent intended his name to be
a signature.
b. Whether the entirety, or if not, how much, of the holograph must be in the testator’s
handwriting
ii. Permitted in over half of the states, primarily in the South and West
1. only two states require a date
iii. Conditional wills
1. most cases presume the language of condition does not mean that the will is to be probated only if
the stated even happens, but is, instead, merely a statement of the inducement for execution of the
will, which can be probated upon death from any cause.
b. Kimmel’s Estate (Pa. 1924)
i. F: Kimmel sent a letter to his sons. The language at the end of the letter stated that if anything happens, all
the real property was to go to George and Irvin (writer’s sons). The letter was mailed by decedent, dated,
and signed “Father.” The testator dies on the day the letter is mailed.
ii. I: Whether the letter may be admitted as a holographic will (whether the paper is testamentary in character
and whether the signature is in sufficient compliance with the Wills Act).
iii. Reasoning
1. The words “if anything happens” is a condition to the gift, they strongly support the idea of
testamentary intent.
2. Signature. Signing “Father” is sufficient for the purposes of the Wills Act. Decedent signed all his
letters in the same manner, thus the intent to execute is apparent.
c. Extent written in the testator’s own handwriting
i. Statutes
1. First generation statutes: “entirely written, signed, and dated” in the handwriting of the testator
a. Some courts required that the will be entirely dated i.e., month, day, and year; any other
form would invalidate the will
b. Nine states still require that a holograph be entirely in the handwriting of the testator.
2. Second generation statutes (1969 UPC): “material provisions”
a. Require that the only signature and the material provisions be in the testator’s
handwriting.
b. Some courts were willing to look to the printed words to establish testamentary intent
c. Five states still have statutes based on 1969 UPC
3. Third generation statutes (1990 UPC): “material portions” and extrinsic evidence allowed
a. UPC § 2-502(b): A will is valid as a holographic will, whether or not witnessed, if the
signature and material portions of the document are in the testator’s handwriting.
b. UPC § 2-502(c): Intent that the document constitute the testator’s will can be established
by extrinsic evidence, including, for holographic wills, portions of the document that are
not in the testator’s handwriting”
ii. Testator writes the will on a preprinted will form but fails to have the form properly witnessed
1. Estate of Mulkins (1972)
a. (1st generation holographic will statute) Will is written on a stationer’s form and signs it.
The signing is not witnessed. The law requires that a holographic will be written entirely
by the testator and signed.
b. The court finds that the typed words on the page are surplus and therefore are not
necessary to admit the will to probate. The testamentary part of the will must be written
by the testator and the will must be signed. The printed words were not essential to the
meaning of the handwritten words and thus the will is admitted to probate.
2. Estate of Johnson (1981)
a. (2d generation statute) Will is written on a stationer’s form and signs it. The will is not
witnessed but it is notarized.
b. Between 1972 and 1981, Arizona revised its statute. It no longer requires that the entire
will be in the hand of the testator. A valid holograph is valid if the signature and the
material provisions are in the hand of the testator.
c. Whether the “material provisions” of the will were in the testator’s handwriting? No. The
will is rejected and not admitted to probate. The only way the court can determine the
validity of the will is to read the printed parts of the will and is therefore invalid.
3. Estate of Muder (1988)
a. Will is written on a stationer’s form and signs it. It is not witnessed.
b. Overturns Johnson but not explicitly. Under Johnson, this will is not admissible to probate
because the language does not express testamentary intention. Without overruling
Johnson, the will is admitted for probate saying that the printed language may be utilized
to put context to the written portions of the will
c. The court focuses their analysis on the testator’s intent: a testator who uses a preprinted
form, and in his own handwriting fills in the blanks by designating his beneficiaries and
apportioning his estate among them and signs it, had created a valid holographic will.
iii. Statutory form wills
1. Short wills with the wording spelled out in a statutes which provides spaces for the testator to fill in
the names of beneficiaries (general recipient-specific)
2. Must be signed and attested in the same manner as any attested will.
d. In re Estate of Kuralt
i. Kuralt met Shannon in 1968, after which the two initiated a long romance. In 1997, just two weeks before
Kuralt passed away, her wrote Shannon a letter assuring her that he would see to it that she would inherit his
property in Montana (he had built the cabin there for the two of them). In 1989, Kurault executed a
holographic will giving Shannon all interest in belongings located in Montana. He subsequently executed a
will in 1994 does not specifically mention any of the real property owned by Kuralt, but it gives all his
property to his wife and children. Shannon and her children were not named as beneficiaries. In 1997,
Kuralt deeded the 20 acre parcel in Montana to Shannon, however, he did not finish a buy-sell for the other
90 acres. The letter he wrote in 1997 stated that he intended to execute another document so that Shannon
would inherit the land in Montana. He never spoke to an attorney before his death.
ii. Shannon seeks to probate the letter as a holographic will. The DC decided that the letter was a codicil to the
1994 will.
iii. The letter demonstrated the testamentary intent of Kurault before he passed away. The DC’s findings are
supported by substantial evidence and are not clearly erroneous. Further, the letter was a codicil as a matter
of law because it made a specific bequest of the Montana property and did not purport to bequeath the
entirety of the estate.
1. Admitted as a will under § 2-502(c) – dispensing power statute. A document can be admitted as a
will of the testator if there is clear and convincing evidence that the testator intended the document
to be his will.
e. Notes
i. Codicil – a testamentary instrument that amends a prior will; it does not replace the will.
Section C. Life Insurance, Pension Accounts, Bank Accounts, and Other Payable-On-Death Arrangements
1. Life insurance
a. Overview
i. Purpose: shift the financial risk of dying young to an insurance company.
1. Experts recommend purchasing life insurance totaling at least six to ten time the annual income of
insured.
2. Life insurance is also commonly purchased to protect a partnership or closely held corporation,
either by giving the partnership or corporation enough money to buy out the decedent’s share, or by
giving the decedent’s family enough case to pay the estate taxes on the business without having to
liquidate it.
ii. Types
1. Whole life insurance or ordinary/ straight life insurance
a. Combination product involving both life insurance and a savings plan.
i. The insured is covered for his entire life
b. In most policies, after many years the policies become paid up or endowed, after which no
further premiums are owed.
i. These policies include a forced savings feature.
2. Universal life or variable life insurance
a. Combine life insurance with a savings account but allow more investment options or
greater flexibility.
b. Premiums remain fixed at the same amount throughout the time they are payable
3. Term life insurance
a. Pure insurance – no savings feature. No cash surrender value.
b. If insured dies during the term of the policy, a stated sum is payable to the designated
beneficiary.
c. Provides an optional renewal of insurance coverage for an additional term without regard
to the insured’s state of health at the time of renewal.
d. Other features (note)
i. Because it is more affordable than other forms of life insurance, it is often an
especially sensible option for young couple who have children
ii. If the term policy includes a conversion option whereby it can be made more
permanent, it protects the insured against the inability to obtain insurance in the
future, after the policy would have other wise expired, if the insured’s health
declines.
iii. Settlement options
1. the owner of the life insurance policy or the beneficiary may select different options for the receipt
of death benefits
a. i.e., (1) a lump sum payment, (2) an annuity for the rest of beneficiary’s life, (3) interest
for years followed by payment of the principal, (4) periodic payments of interest and
principal
iv. Wilhoit v. Peoples Life Insurance Co. (7th Cir. 1955)
1. T received the benefit of a life insurance in the amount of $5,000. She executed a written
instrument acknowledging the receipt of the payment amount and the termination of all claims
under the policy. Thereafter, T directed the insurance company that the proceeds of the money
should be held in trust by the insurance company, all proceeds payable to Robert G. Owens. The
insurance company accepted the terms of T. The beneficiary predeceased T in this case. T left a
last will and testament which designated as the beneficiary of the trust, Robert Wilhoit. The
company refused to recognize the claim to the fund made by Robert Wilhoit, the legatee named in
the will of T and the P in the instant action. Thomas Owens claimed the fund as the legatee under
the will of Robert G. Owens. The court granted the P his summary judgment motion for the
balance of the insurance amount.
2. Defendant’s claim
a. Agreement between T and insurance company was an insurance contract or a contract
supplemental thereto
i. (1) the rights of the parties must be determined by the law of insurance and not
by the statute of wills
ii. (2) T as a primary beneficiary named Robert Owens as the successor beneficiary
irrevocably, without right to revoke or change and without a pre-decease of
beneficiary provision, and that as a result the rights of such successor beneficiary
upon his death prior to the death of the primary beneficiary did not lapse but
passed on to the heirs and assigns of such successor beneficiary.
3. Plaintiff’s argument
a. The disposition of the fund is not controlled by the law of insurance because the
agreement between T and the company was not an insurance contract or a supplement
thereto but was nothing more than a contract of deposit and that in the even of her death
was an invalid testamentary disposition. Moreover, any interest acquired by Owens was
extinguished upon his death, which occurred prior to T.
4. Holding
a. The arrangement between the parties was the result of a separate and independent
agreement, unrelated to the terms of the policy.
5. Analysis
a. The investment provision was an offer by the company which T rejected by accepting its
proceeds and signing the letter acknowledging the receipt and surrendering further claims
under the policy. Twenty-three days later, she made her own proposal to the company
which differed materially from the initial company offer.
b. The agreement was neither an insurance contract nor an agreement supplemental thereto.
i. The condition in the contract was that the proceeds would only go to Owens upon
her death.
c. Intention of the parties
i. T did not intend that the fund go to the successors of Owens but that after his
death she thought she had the right to dispose of the fund as she saw fit, as is
evidenced by the specific bequest contained in her will.
6. Court action
a. The Court struck down a payable-on-death designation in a contract of deposit
because it was a testamentary act not executed with the formalities required by the
Wills Act.
b. The Court follows the traditional rule, that POD designations in many contracts other than
life insurance are invalid.
v. Estate of Hillowitz (NY 1968)
1. Hillowitz had been a partner in an investment club, and after his death, the club, pursuant to a
provision of the partnership agreement paid the widow the amount of the interest in the partnership.
2. Executors of the will claim that the provision was an invalid attempt to make a testamentary
disposition of property and that the proceeds should pass under the decedent’s will as an asset of
his estate. The widow contends that it was a valid and enforceable contract.
3. PH: Surrogate court held in favor of the widow. The Appellate division held that the agreement
was invalid as an attempted testamentary disposition of property.
4. Analysis
a. The devise in the partnership agreement is the same as a partnership agreement that
provides, upon the death of a partner, that his interest shall pass to the surviving partner or
partners, resting as it does in contract.
b. The partnership undertakings are nothing more or less than third party beneficiary
contracts, performable at death and therefore need not conform to the requirements of the
statute of wills.
vi. Family Limited Partnership
1. D transfers assets to the partnership in exchange for a limited partnership interest. The decedent’s
family likewise transfers assets to the partnership in exchange for limited partnership interest. The
general partner is a corporation owned by the decedent and his family.
a. When D’s limited partnership interests pass to his family, the value of those interest are
discounted for estate tax purposes because of their lack of control rights and non
marketability.
b. UPC § 6-101 Nonprobate Transfers on Death
i. (a) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond,
mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement,
deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan,
trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is
nontestamentary. This subsection includes a written provision that
1. (1) money or other benefits due to, controlled by, or owned by a decedent before death must be
paid after the decedent’s death to a person whom the decedent designates either in the instrument or
in a separate writing including a will, executed either before or at the same time as the instrument
or later;
2. (2) money due or to become due under the instrument ceases to be payable in the even of death of
the promisee or the promisor before payment or demand; or
3. any property controlled by or owned by the decedent before death which is the subject of the
instrument passes to a person the decedent designates either before or at the same time as the
instrument, or later.
ii. (b) This section does not limit rights of creditors under other laws of this State.
iii. UPC § 6-706: Antilapse provision for P.O.D. designations which substitutes the issue of the named
beneficiary who does not survive the benefactor.
c. Notes
i. Dead beneficiaries
1. In the law of wills, a devise is required to survive the testator in order to take; if the devisee
predeceases, the gift lapses.
ii. Naming beneficiaries in will different from those in policies
1. Majority Rule: Cook v. Equitable Life Assurance Society (Indiana 1981)
a. Cook purchased a whole life insurance policy naming his wife as beneficiary. He
thereafter divorced her and remarried. He had a son in the second marriage. He never
changed the name of the beneficiary in the life insurance policy although he did change
his will to reflect his desire that his new wife and son should be the beneficiaries of the
policy.
i. Term life insurance – payment of insurance premiums are required
ii. Whole life insurance – insurance component like term policies and a savings
feature so that as a premium is paid it goes toward the insurance and an amount
goes into savings. If a persons stops making insurance payments, the insured has
the right to withdraw the money from the savings account – lump sum of cash
accruing
b. The court finds that compliance with the insurance policy is a requirement to taking under
a POD insurance policy. Due diligence in changing the beneficiary name rests on the
owner of the policy.
iii. Superwills
1. Would annul the beneficiaries named in various nonprobate instruments and name a new
beneficiary.
2. Pension Accounts
a. Overview
i. John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission
1. Generally, pension funds are composed almost entirely of financial assets—the instruments of
financial intermediation—that distinctively modern form of property that was still of peripheral
importance in the last century.
2. The Enhancement of Life Expectancy
a. Life expectancy increases along with the shift in the nature of wealth (from property to
financial interests) require a different approach to savings and being prepared for old age.
3. Pension Wealth
a. Tax incentives (tax-qualified pension plan)
i. (1) Most contributions to the plan are tax-deferred.
ii. (2) Earnings on qualified plan investments accrue and compound on a tax-
deferred basis.
iii. (3) Because most retirees have lower taxable income in their retirement years
than in their peak earning years, they find that distributions from pension
accounts are usually taxed at lower marginal rates.
4. Annuitization Eliminates Succession
a. Pension system was deliberately designed to promote lifetime exhaustion of the
accumulated capital
b. Annuitization
i. Allows people to consume their capital safely, without fear of running out of
capital while still alive
ii. Requires a large pool of lives, which is achieved by various methods of
aggregating the pesion savings of many workers.
iii. Requires assets that can be liquidated predictably as distribution requires
1. Mostly financial assets
iv. Accounts that have been annuitized disappear on the death of their annuitants.
ii. Notes
1. Annuities
a. Payment every year for the rest of the beneficiary’s life.
b. Shifts the financial risk of living too long to a pension fund or insurance company
i. Those who die younger pay for those who die older.
2. Defined benefit plan – the employer promise to pay an annuity on retirement
a. The benefit from the pension is determined by the length of time an employee has worked
for the employer and the amount of salary the employee received. Typically, the salary
component is computed by a specific formula based on the top five salaries in the previous
ten years. That component is multiplied by the length of time the person was employed.
3. Defined contribution plan – both the employee and the employer make contributions to a
specific pension account for the employee.
a. Employee are family are entitled to all the accumulation in this account, therefore these
plans often lead to lump-sum payouts on the death of the worker and her spouse.
b. Employee or employer deposit into a separate account for each employee an amount each
year of employment. The employee is accumulating a savings account based on the
annual additions into the employee’s defined contribution plan so that when the employee
retires, he may elect to take a pension. The amount of pension they are entitled to depends
on how much is in the account and how much of a pension can be purchased for how
much is in there
c. Most have a provision such that if the employee dies early, whatever balance is left will be
paid to a beneficiary
b. Does ERISA (federal regulation of pension plans) preempt the applicability to them of the state subsidiary law of
wills?
i. Egelhoff v. Egelhoff, 532 U.S. 141 (2001)
1. Facts
a. Statute: Washington statute provides that the designation of a spouse as the beneficiary of
a nonprobate asset is revoked automatically upon divorce
b. Decedent Egelhoff’s employer provided him with a life insurance policy and a pension
plans. Both were governed by ERISA and D’s wife was designated as the beneficiary. In
1994, the Eggehoffs divorced. The decedent died intestate. The ex-wife remained the
listed beneficiary under both plans. The proceeds were paid to her. Respondents are
Egelhoff’s children by a previous marriage and his statutory heirs under the law. They
sued to recover the insurance proceeds.
c. ERISA provision: ERISA “Shall supersede any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan” covered by ERISA.
2. Issue
a. Whether ERISA pre-empts the state statute to the extent it applies to ERISA plans? Yes.
3. Holding: The statute is expressly pre-empted by ERISA.
4. Analysis
a. Rule: State law relates to an ERISA plan if it has connection with or reference to such a
plan.
i. State statute has an impermissible connection with ERISA plans
1. The statute binds ERISA plan administrators to a particular choice of
rules for determining beneficiary status
ii. State statute interferes with nationally uniform plan administration
iii. Congressional intent was to minimize the administrative and financial burdens on
plan administrators
iv. Lack of uniformity
b. Response to respondents’ arguments
i. Clear Congressional Intent
ii. Common Law traditions may create exemptions to ERISA preemption
5. J. Breyer, dissent
a. The main goal of ERISA is to develop a fair system for protecting employee benefits
i. The ex-wife in this case got a larger share of D’s property than she would have
received otherwise (the property she received through the divorce settlement).
b. While the court makes a decision only regarding revocation by divorce, the doctrine is
bound to extend to other areas such as slayer statutes.
3. Multiple-Party Bank and Brokerage Accounts
a. Bank and brokerage accounts:
i. Joint and survivor account
ii. POD account
iii. Agency account
iv. Savings account trust or Totten trust
v. *Note* - if one form of account is intended in a state that does not allow them, the survivor is not entitled to
the proceeds in the account, which belong instead to the depositors estate.
b. Franklin v. Anna National Bank of Anna (Ill. 1986)
i. D’s attempts to change the account show his consistent view of the account as his own. The surrounding
circumstances show decedent’s concern for his health and his relatively brief use of Mrs. Goddard to assure
his access to his funds. The money in the account should have been found to be the property of the estate.
1. Depositor did not intend to create survivor benefits in the account. Deceased meant to have a
convenience account only – the other person on the account had the right to write checks, etc. but
no other right.
Section D. Joint Tenancies in Realty
1. A joint tenancy – two or more people own the property in a manner such that when one of the owners dies, that owner’s
interest in the property terminates and the ownership of the property then continues in the surviving joint owner or owners.
There is no actual transfer of property at the death of one of the joint tenants. Any kind of property can be held in joint
tenancy unless some statute has made some other kind of provision for the holding of that property (usually in real property)
a. Features
i. (1) The creation of a joint tenancy in land gives the joint tenants equal interest upon creation
ii. (2) A joint tenant cannot devise her share by will
1. If a party wants to convey her share at death, she must sever the joint tenancy during life,
converting it into a tenancy in common (can be severed any time by any of the tenants creating a
tenancy in common). Reasons:
a. (a) Nature of the reciprocal form of ownership
b. (b) The vanishing theory of the common law – no property actually passes when a joint
tenant dies. Instead, the decedent’s interest vanishes at death and the survivor owns the
whole interest.
2. If a joint tenant could devise his share, the property would be subject to litigation to determine the
validity of the will and whether the made a disposition of the joint tenancy of the property.
iii. (3) Creditors: a joint tenant must seize the joint tenant’s interest during life.
b. Exceptions to the rule
i. Bank accounts
1. The difference in bank account joint tenancies is that the creation of a bank account joint tenancy
does not create in the joint tenants equal undivided ownership of the balance in the bank account.
a. The creator of the account continues to own the entirety of the bank account until the other
person withdraws from the account without obligation to withdraw with the joint tenant’s
permission. Amount of money in the account belongs to the person who put it there in the
first place
i. There is no gift upon the creation of the joint tenancy account
b. The only interest available to the joint tenant, not the depositor, is the money at the death
of the primary holder of the account.
c. Should be avoided except between spouses
d. If a joint tenancy is created with someone not your spouse, the asset is put at risk from creditors of the child. The
child is entirely responsible
i. unintended creditor – judgment creditor may look to real property
e. Tenancy by the entirety
i. Can only exist between spouses
Section E. Planning for Incapacity
• Why is this a problem?
o Increasing life spans and increasing occurrence of mental and physical incapacity
1. The Durable Power of Attorney
a. Ordinary power or attorney
i. Creates an agency relationship whereby the agent, called an attorney-in-fact, is given a written authorization
to act on behalf of the principal
ii. Agent’s authority terminates on the principal’s incapacity.
b. Durable power of attorney – Agency relationship
i. Continues throughout the incapacity of the principal until the principal dies
1. The principal, if competent, can terminate the agency and durable power at any time
2. Permitted by UPC §§ 5-501 and 5-505 and by statutes in all states
3. Specific language is required in the instrument expressing the intent of the principal that the power
not terminate upon incapacity
ii. Creation
1. Written instrument, state statute may require the document to be witnessed or notarized
a. Tailored to the wishes of the client
2. Statutory short form – incorporating by reference statutory powers given the agents
iii. Controlled by the common law of agency
1. Fiduciary duties of loyalty, care, and obedience
c. Holder of a durable power
i. Differences from a trustee power
1. (1) A durable power ceases when the principal dies; holder cannot make any transfers after the
principal’s death
a. A durable power does not avoid probate. A trust does avoid probate because it continues
after the settlor’s death.
2. (2) If an agent dies, the power terminates unless a successor agent is named by the principal. If a
trustee dies, a successor trustee is appointed by a court.
3. (3) A trustee has title to the trust assets and generally has all the powers the owner has. An agent
does not own the property and agency law sparingly implies powers and strictly construes express
powers
a. Trusts are generally more flexible.
d. Problems
i. Powers of attorney are handy for people who may abuse the power of their agency that many financial
institutions are unwilling to recognize their validity.
e. Franzen v. Norwest Bank Colorado (Colo. 1998)
i. Husband established a trust and named Norwest Bank as the trustee. The main beneficiary was the wife.
Under the terms of the trust, W had the rights within three months of H’s death to terminate the trust and
receive the proceeds. She decided not to terminate the trust. W’s brother moved W to a nursing home close
to where he lived and asked the bank to turn over W’s assets to him. The bank becomes concerned about
the assets of W that were not in the trust. The bank filed a petition for instruction and advice in the probate
court. W’s brother sent a power of attorney to the bank which authorized him to remove the bank as trustee.
ii. The probate court ruled that the power of attorney had created a valid agency but that the trust had not been
revoked because there was no specific provision in the power to do so.
1. Bank argued that the statute codified the common law that specific power to do particular actions
i.e. revoke a particular trust, etc.
2. Generally prevailing common law is that the specific power to revoke a particular instrument does
not have to be explicit in the power.
iii. The court held that
1. the terms of the power of attorney need only evidence an intention to authorize the agent to make
decisions concerning the principal’s interest in trusts generally, not necessarily a particular trust.
The power of attorney in this case appears to give the agent sweeping powers to dispose of the
principal’s property to be narrowly construed in light of the circumstances surrounding the
execution of the agency instrument.
f. Law of ademption
i. When the devised property is not owned by the testator at death, the devise is adeemed and the devisee takes
nothing. (i.e., a house is devised by will to A but T sells it to B, at T’s death, A’s gift simply extinguishes.)
g. Under the federal estate tax, inter vivos transfers by the decedent which the decedent retains the power to revoke are
included in the decedent’s taxable gross estate.
i. Express authorization must be given to make gifts in the power of attorney, if the donor so desires.
h. Uniform Power of Attorney Act
i. Replaces the term attorney-in-fact with the simpler term agent.
ii. Also provides
1. (1) all powers of attorney are durable unless the instrument states otherwise (thus reversing the
current default rule), and
2. (2) the agent will not have the power to amend or revoke trusts or give away the principal’s assets
without express authorization to do so
2. Directives Regarding Health Care and Disposition of the Body
a. Advance Directives: Living Wills, Health Care Proxies, Hybrids
i. Supreme Court holding: each person has a constitutional right to make health care decisions, including the
right to refuse medical treatment
ii. Living wills:
1. Signed with testamentary formalities and gives directions that the person does not want to be put on
life sustaining measures. It is generally binding on providers of medical care – problems: medical
provider does not know there is living will. Completely ineffective if it is not communicated
iii. Power of attorney for health care
1. Provides an agent for the purpose of giving instructions (binding) on providers of health care in
regards to what medical procedures you are to receive.
a. Substituted judgment standard – what the patient has chosen or would have chosen in that
situation
b. Responsibility for incompetent patient’s decisions:
i. (1) patient’s guardian of the person;
ii. (2) patient’s spouse;
iii. (3) any adult son or daughter of the patient;
iv. (4) either parent of the paitent;
v. (5) any adult brother or sister of the patient;
vi. (6) any adult grandchild of the patient;
vii. (7) a close friend of the patient; and
viii. (8) the patient’s guardian of the estate.
iv. Advance directives:
1. Instructional directives, such as a living will or a commonly used form known as medical directive,
which specify either generally or by way of hypothetical examples how one wants to be treated in
end-of-life situations or in the event of incompetence;
2. Proxy directives, such as health care proxy or durable power of attorney for health care, which
designate an agent to make health care decisions for the patient (the power of the agent does not
expire with the principal’s competency); or
3. Hybrid or combined directives incorporating both of the first two approaches: directing treatment
preferences and designate an agent to make substituted decisions
v. Bush v. Schiavo, Supreme Court of Florida, 2004
1. F:
2. I:
3. R:
b. Disposition of the Body
c. Note: Elder Law
3. Extrinsic evidence? None that would demonstrate that she had intended to give the aunt her estate.
a. Evidence of the Surrounding Circumstances – may be introduced but not to show that the
intention was different. For example, there may be evidence to show that testator had a
large family and that she had given other property or funds to other people.
iv. In re Estate of Smith
1. Exact fit of the term, except that it is a Nevada corporation and it is not a Pinckneyville, Illinois.
The location is merely descriptive of the location of Perry Manor, Inc. at the time of the devise.
The location is disregarded by the court.
b. Personal usage exception
i. If the extrinsic evidence shows that the testator always referred to a person in an idiosyncratic manner, the
evidence is admissible to show that the testator meant someone other than the person with the legal name of
the legatee.
1. Example: T gave Mrs. Moseley a devise of money but the court found that T meant Mrs. Trimble,
who was the wife of a salesman at Moseley’s cigar store who was called Mr. Moseley by T.
c. Patent Ambiguities
i. A patent ambiguity is an ambiguity that appears on the face of the will
1. In some states, extrinsic evidence is not admissible to clarify even a patent ambiguity, and the will
or the devise fails – both gifts are struck because the error cannot be corrected.
2. Increasingly, extrinsic evidence is allowed to aid in interpreting a patent ambiguity
3. Another approach is to construe the language of the will without the aid of extrinsic evidence in a
manner that saves the devise
ii. Example: T devised to A 80 acres out of a farm and to B 140 acres of the same farm. The ambiguity is that
T did not specify which acres were to go to whom. The court found that A and B were intended to be
tenants in common in fractional shares in the farm.
d. Latent Ambiguities
i. A latent ambiguity is an ambiguity that does not appear on the face of the will but manifests itself when the
terms of the will are applied to the testator’s property or designated beneficiaries.
1. Oral declarations of intent to the scrivener are admitted in most jurisdictions in cases of latent
ambiguity
ii. Two types
1. Equivocation: the will clearly describes a person or thing, and two or more persons or things
exactly fit that description.
a. Extrinsic evidence is permitted because the terms of the will are made more specific but
nothing is added thereto
2. Exists when no person or thing exactly fits the description, but two or more persons or things
partially fit
a. Devise to Mr. and Mrs. Wendell Richard Hess residing at 17 Barbara Circle. The couple
divorces and both move out of the home. Mr. Hess remarries Verna. T dies and there is
no one that fits the entire description. The court looks at who would fit the description
when the will was created.
2. Slouching Toward Reformation: Correcting Mistakes without the power to reform wills
a. Chart:
Effect: Effect:
Lack of Volition Mistaken Terms
Cause: Undue Influence, Fraud
Intentional Wrongdoing Duress
(relief granted) (relief granted)
Cause: Lack of Capacity, Mistake
Innocent Acts Insane Delusion
(relief granted) (no relief)
i. Lack of volition: Wills should express the testator’s true wishes that were rationally expressed by the
testator.
1. Regardless of whether the decisions come about by intentional wrongdoing or innocent acts
2. Remedy: the will or term of the will is not given effect due to lack of testamentary intent
ii. Mistaken terms
1. Fraud: intentional wrongdoing, lacks testamentary intent and therefore it would be struck
2. Mistake
a. Under plain meaning rule, no relief is granted
b. Arnheiter v. Arnheiter, New Jersey 1956
i. T devises his property in 304 Harrison Avenue. He, however, never owned 304, he owned 317. The court
strikes the number 304 and permits the devise of 317 Harrison Avenue.
c. Estate of Gibbs
i. The court strikes things it deems to be unnecessary. In this case, the court strikes the address and the middle
initial of the devisee
3. Openly Reforming Wills for Mistake
a. Erickson v. Erickson, Connecticut 1998
i. Plaintiff is Alicia Erickson, the daughter of the deceased. Defendant is Dorothy Erickson, executrix of the
estate of the decedent.
ii. Issue: Whether the trial court should have admitted evidence regarding the decedent’s intent that his will
would not be revoked automatically by his subsequent marriage. Yes.
iii. H: The trial court improperly excluded extrinsic evidence of decedent’s intent. A new trial is ordered.
iv. At trial, the court holds that the fact the will was executed two days before the wedding and gives everything
to the spouse, including making the spouse the guardian of minor children, and executor of the estate, etc.,
the statute (requiring the will anticipate the marriage) has been met.
1. T’s daughter appeals.
v. The appellate court holds the following:
1. The will did not provide for the contingency of subsequent marriage
2. The trial court improperly excluded extrinsic evidence of intention
a. T’s intention in regard to whether the will was intended to survive the marriage is
important to demonstrate that the attorney made a mistake (not the testator)
i. Lawyer says that there is abundant evidence from the terms of the will that it was
intended by the testator that the will survive the marriage
ii. Deathbed counseling – on at least two occasions, T asked the lawyer if the lawyer
was sure that his wife would get the property; attorney in both cases responds
that the will devises the property to the wife
b. Whose mistake is it? The client’s or the attorney’s mistake?? Scrivener’s mistakes are
corrected, not the testator’s
c. Standard of proof – clear and convincing evidence
b. Restatement of Property § 12.1 Reforming Donative Documents to Correct Mistakes
i. A donative document, though unambiguous may be reformed to conform the test to the donor’s intention if
the following are established by clear and convincing evidence:
1. (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the
document; and
2. (2) what the donor’s intention was.
ii. Direct evidence of intention contradicting the plain meaning of the text as well as other evidence of
intention may be considered in determining whether elements (1) and (2) have been established by clear and
convincing evidence.
c. John H. Langbeing, Curing Execution Errors and Mistaken Terms in Wills (Know this)
i. Case rejects the idea that malpractice cases are the way to address the mistakes made in a will. It leaves the
wrongfully distributed property in the hands of the wrongful beneficiary.
ii. Damages are usually not sufficient if the gift is a rare painting or a family heirloom or some other kind of
unique property that is distributed to the wrong person – damages do not make the parties whole.
iii. Lawyer bears the burden of the mistake and those who would have received if the mistake is not remedied
receive a windfall, the lawyer bears the economic burden.
d. Mistakes by scrivener
i. In some cases courts have remedied mistakes by the scrivener
ii. Where there has been an accidental omission by the scrivener or typist, courts have sometimes inserted the
missing words when convinced from the face of the will and extrinsic evidence what missing words are
intended.
e. Gifts by implication
i. Doctrine of Probable Intent – if a contingency for which no provision is made in the will occurs, the court
studies the family circumstances and the plan of testamentary disposition set forth in the will. Then the
court places itself in the position of the testator and decides how the testator probably would have responded
to the contingency had he envisioned the occurrence
ii. Gifts filling a gap in a will may also be implied by the process of construction.
f. Problems with rectifying wills
i. Once courts move away from the words on the face of the will, testators potentially lose the safe harbor of a
written will
ii. Some courts allow reformation for tax purposes but for no other reasons
g. Fleming v. Morrison
i. T wanted to sleep with Fleming. For that purpose he drafted a will conveying all his property to Fleming.
Goodridge, the lawyer was to act as a witness, however T informed Goodridge that the only purpose for
drafting the will was to sleep with Fleming after the lawyer witnessed the will. Goodrigde still witnessed
the will. The two other witnesses did not know of the intent of T.
ii. Court allows extrinsic evidence to show that T did not mean to make the will his last will and testament.
The court essentially makes the scheme work perfectly
iii. The court finds that the will is invalid because there were only two witnesses, instead of the required three,
that correctly witnessed the will. The third, Goodridge, knew that the will was not valid because he knew it
did not reflect he intent of the testator.
2. Antilapse Statutes
a. Provide that if a devisee is in a specified relationship to the testator and is survived by issue who survive the
testator, the issue are substituted for the predeceased devisee [Note: in some states, the antilapse statute applies only
if the beneficiary is a child of the testator or if the beneficiary is a grandparent of the testator or in that line, a couple
of states apply the statute to all gifts]
i. An antilapse statute applies to a lapsed devise only if the devisee bears the particular relationship to the
testator specified in statute.
ii. UPC antilapse statute applies only to devises to a grandparent or a lineal descendant of a grandparent.
b. The antilapse statute, which supersedes the common law where applicable, is also a default rule. It applies unless the
testator indicates that it not apply. If the testator manifests an intent that the antilapse statute not apply, and he does
not include an alternative gift when a devisee predeceases the testator, the common law default rule applies.
c. UPC (1969) § 2-605 Antilapse; Deceased Devisee; Class Gifts
i. If a devisee who is a grandparent or a lineal descendant of a grandparent or of the testator is dead at
the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator,
the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased
devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal
degree then those of more remote degree take by representation. One who would have been a devisee
under a class gift if he had survived the testator is treated as a devisee for purposes of this section
whether his death occurred before or after the execution of the will.
ii. Note: Adopted child is treated as a lineal descendant, stepchildren are not treated as lineal descendant
iii. UPC § 2-603 (1990) version says that the phrase “who survive me” does not require survivorship to take
i.e., the antilapse statute is not overcome by such words. It has only been adopted in a dozen states – has the
effect of redrafting testator’s will. [No survivorship requirement without more.]
1. One way about this result is to specify that the antilapse statute does not apply.
2. What more can one have than “who survive me”?
a. Specify the persons to whom the share would go if a devisee does not survive. [Must be
in the text of the will.]
iv. Note: The antilapse statute is NOT strong enough to overcome testator’s words in the will. The words “who
survive me” qualifies as a presumption overcoming the antilapse statute (which is only a default rule).
d. Allen v. Talley, Texas 1997
i. The devise was to her living brothers and sisters. If the will provides that the devisee must survive in order
to take, the antilapse statute would not take effect. The antilapse statutes would say that it applied to
grandparent or lineal descendants of grandparents of the testator – the brothers and sisters would clearly
apply to save the gift to children of deceased members unless there is an explicit requirement for
survivorship. The problem here is that the language is unclear.
ii. The gift was to a class (brothers and sisters). The language blocks the application of the antilapse statute
e. Jackson v. Schultz. Entire estate is devised to T’s wife before he dies, leaving three children by a previous marriage
as her sole heirs. The antilapse statute does not apply to a spouse when the spouse predeceases the T (because they
are not lineal descendents). Spouses are not descendents of the grandparent of the testator. This is a gift to the
spouse and her heirs and assigns for ever. There are no heirs of the testator so the gift will escheat to the state unless
the court can discover a gift to the children of the deceased spouse. The court first observes that the language to “x
and his heirs” means “to x in fee simple”- and “his heirs” are words of limitations (describing the extent of the
estate). Then the court says that a gift “to X or his heirs” is a substitutional gift. In that case “or his heirs” are said to
be words of purchase. The court says that “and” and “or” are substituted if it is necessary to implement the testator’s
intention. Under the facts and circumstances of the case, T intended to not die intestate therefore “and her heirs and
assigns” means “or her heirs and assigns” and so the children take.
i. Suppose that the wife left a will that gave her residuary estate to the law school. Now there are heirs and
assigns and the words “or heirs or assigns” and we have both. Who takes?
1. Who knows. Deciding that “and” can be replaced by “or” makes the case difficult if other facts are
present.
3. Class Gifts
a. The reason class gifts get particular attention is that the results are so different under class gifts in the common law
than if it is a gift to persons not in a class. It is critical to understand whether a gift is a class gift or not in order to
apply the antilapse statute
b.
c. Dawson v. Yucus
i. Wife wanted the farm to go back to husband’s family upon her death. She named the two nephews, one of
them predeceased the testator. At issue was whether the gift to the nephews Wilson and Burtle was a class
gift., in which case the surviving nephew, Wilson would take Burtle’s share. If no, then Burtle’s share would
lapse, and so would pass to residuary devisees.
ii. H: Not a class gift, so lapse and passes under the residuary clause.
d. In re Moss
i. Daily Telegraph stock in trust to wife and Elizabeth (niece), residue to wife. Wife’s will gives all her
interest to Kingsley. The wife is to receive the income from the trust for life. The trust was then to be
distributed to Elizabeth and the children of Emily. Elizabeth dies, never marries and does not have children.
Five nieces survives the testator.
ii. Issue: whether the share of E.J. Fowler, who had predeceased the testator, lapsed and so fell into the residue
of the estate, or whether instead the remainder in the newspaper stock was a class gift with Fowler and the
children of Emily as the class members
iii. If the gift is specific, Elizabeth’s share passes to the residue and then passes through wife’s estate (to
Kingsley).
1. if it is not a class, how much passed to the residuary? If Elizabeth’s gift lapses and there is not a
class, the gift should be half (1/2) [to Elizabeth and the children of Emily]
iv. By calling the gift to Elizabeth and Emily’s children (nieces) a class gift. A lapsed gift in the class is
divided equally among the survivors of the class. In doing so, the court says that because the persons to
whom the gift goes to are all nieces.
1. the court held that it is 1/6 and 5/6 because one cannot tell how much Elizabeth would get until one
knows how many children of Emily survive.
v. The fraction makes a difference.
CHAPTER 7 RESTRICTIONS ON THE POWER OF DISPOSITION: PROTECTIONS OF THE SPOUSE AND CHILDREN
Section A. Rights of the Surviving Spouse
1. Introduction to Marital Property Systems –
a. REVIEW of INESTACY - The first taker in intestacy is the surviving spouse. The first share is given to surviving
spouse. The fraction or portion of intestate share varies from jdx to jdx, all of the fractions are derived with idea in
mind that the legislature will give surviving spouse the portion of the estate that they think a spouse who wrote a will
would give.
b. The most common of the fractions that goes to intestate survivor is 1/3 if there is a child. If no surviving child, then
½. UPC gives a larger share, 100% to surviving spouse where there are no children or parent, or where all of the
children are also children of the deceased spouse.
c. There is a difference between intestate share and the forced share.
d. Basic marital property systems
i. Separate property or Common law property
1. under the common law husband and wife own separately all property that each acquires (except
those items one spouse has agreed to put into joint ownership with the other)
2. issue: what protection against disinheritance should be given the surviving spouse who works in the
home or works at a lower-paying job?
a. Elective or forced share for the spouse
i. Limited to a share of property acquired with earnings
ii. Community property (8 states)
1. under community property husband and wife own all acquisitions from earnings after marriage in
equal undivided shares
2. The death of one spouse dissolves the community. The deceased spouse owns and has
testamentary power over only his or her one-half community share.
2. Rights of Surviving Spouse to Support
a. Social Security
i. Benefits depend on the year the beneficiary was born. If he elects to receive benefits before full eligibility,
the monthly payments are reduced.
ii. If a worker dies, his or her surviving spouse receives the worker’s whole monthly Social Security
benefits. The worker has no power to transfer the spousal rights benefit to any other person.
1. a divorced ex-spouse of the worker has a right to benefits if the marriage lasted for 10 years or
longer.
iii. Gender equity
1. Divorce is common and 2/3 of it occurs within ten years of marriage – ex-spouse does not get the
SS proceeds
2. Differential treatment of families where one spouse worked in comparison to families in which
both spouses worked
a. If both spouses worked but one is retired and the other still works, upon the death of the
retired spouse, the surviving spouse gets the full monthly payment of SS.
b. If both spouses worked but at the time of death of one of the spouses, both spouses were
retired, the surviving spouse gets only her own Social Security benefit, or the deceased’s
benefit, whichever one is larger—but not both.
iv. Formula. Amount of quarters worked, the amount of earnings taxed, and the age of retirement.
b. Private Pension Plans
i. Governed by ERISA – Employee Retirement Income Security Act of 1974.
ii. Two types
1. Defined Contribution Plan
a. Funded by contributions from both the employer and the employee.
b. At retirement, the employee is entitled to the assets in the fund held in her name, including
any investment returns that have accrued over the years.
2. Defined Benefit Plan
a. Funded by the employer.
b. At retirement, the employee is entitled to a defined benefit i.e., 40 percent of the average
of the employee’s three highest years of annual income.
iii. ERISA Requirements
1. The spouse of an employee must have survivorship rights if the employer predeceases the spouse.
a. Policy. Insures a stream of income to surviving spouses.
b. If the employee spouse survives to retirement age, the pension must be paid as a joint and
survivor annuity to the employee and his or her spouse, unless the nonemployee spouse
consents to some other form of payment of the retirement benefit, such as a lump sum.
c. If the employee dies before retirement and the pension is vested, the surviving spouse is
entitled to a preretirement survivor annuity.
2. ERISA preempts state law
3. Waiver
a. A spouse may waive her rights to benefits under the employee’s pension plan, but ERISA
discourages waivers by strict rules requiring their validity.
b. Requires written consent of the spouse, and one who is not yet a spouse may not consent
(i.e., antenuptial agreements)
c. Workers under the age of 35 cannot effectuate a waiver of spousal benefits.
iv. Superior to claims of other creditors; small in size
c. Homestead
i. Probate Homestead
1. State laws designed to secure the family home to the surviving spouse and minor children, free of
the claims of creditors
2. The surviving spouse has the right to occupy the family home for his or her lifestyle
3. Two approaches
a. (1) the homestead must be established by the decedent during life, usually by filing a
declaration of homestead in some public office; or
b. (2) the probate court has power to set aside real property as a homestead.
4. Amounts
a. Some states have a very low exemption which provides little protection to the surviving
spouse
b. UPC §2-402 recommends $15,000.
c. In other states, the homestead exception is substantial and may exempt the family home
regardless of the value.
5. The decedent has no power to dispose of a homestead so as to deprive the surviving spouse of
statutory rights therein.
a. The right to occupy the homestead is given in addition to any other rights the surviving
spouse has in the decedent’s estate.
6. Superior to claims of other creditors; small in size
d. Personal Property Set-Aside
i. The right of the surviving spouse (and sometimes minor children) to have set aside certain tangible personal
property of the decedent up to a certain value.
1. UPC § 2-403 sets the limit at $10,000.
ii. The property usually includes household furniture and clothing, but may also include a car and farm
animals.
iii. The set-aside is usually subject to several conditions and limitations, but if these are met, the decedent
usually has no power to deprive the surviving spouse of the exempt items.
iv. Superior to claims of other creditors; small in size
e. Family Allowance
i. Every state has a statute authorizing the probate court to award a family allowance for maintenance and
support of the surviving spouse (and often the dependent children).
ii. The allowance may be limited by statute to a fixed period, or it may continue thereafter while the will is
being contested or for the entire period of administration.
iii. Note: the allowance is in addition to whatever other interests pass to the surviving spouse.
iv. Varies by state
1. in some states, the maximum allowance that can be awarded if fixed by statute.
2. in other states, a reasonable allowance tied to the spouse’s standard of living is permitted.
3. UPC § 2-404 allows a reasonable allowance, which cannot continue beyond one year if the estate is
inadequate to pay creditors
v. Maintenance of the decedent’s spouse and dependent children is not allowed after the estate is closed.
vi. Trend abroad:
1. The state grants the court discretion to override the terms of the decedent’s will and to distribute
some or all of the estate to the decedent’s family and other dependents if the court determines that
they deserve a larger share.
vii. A dollar amount providing a source of support money during the period of time that the probate is ongoing.
f. Dower and Curtesy
i. Dower – the widow’s right in all land of which her deceased husband had been seised during marriage and
which was inheritable by the issue of husband and wife.
1. Interest: Life estate in one-third of her husband’s qualifying land.
2. Attaches the moment the husband acquires title to land or upon marriage, whichever is later.
a. Thereafter, the husband cannot sell the land free and clear of the wife’s dower interest.
b. No purchaser can cut off the wife’s dower without consent.
3. It remains inchoate until the husband’s death, when it becomes possessory.
4. Right as viewed today: signatures of both spouses is a practical requirement to the sale of one
spouse’s land.
a. Abolished in most states. It exists in only four jurisdictions.
ii. Curtesy – the husband had a support interest in his wife’s land.
1. Features
a. (1) the husband did not acquire curtesy unless children were born of the marriage, and
b. (2) the husband was given a life estate in the entire parcel, not merely in one-third.
2. Right as viewed today: label given to the support interest of the husband, which is identical to the
wife’s support interest.
3. Rights of Surviving Spouse to a Share of Decedent’s Property
a. The Elective Share and its Rationale
i. Analysis
1. Who can elect?
2. What is the election amount?
a. Typically, 1/3
3. What is the estate against which the spouse can elect?
a. Most states, the probate estate – non probate transfers to other parties,
b. How have courts addressed the problem?
i. Illusory test – a transfer that for all practical purposes, the decedent spouse
retained ownership
ii. Intent to defraud
iii. Present donative intent
ii. Overview
1. Apply only in separate property or common law property jurisdictions
a. In community property states, the spouses have a 50% undivided interest in all earnings of
each other.
b. Election the surviving spouse has whether or not the decedent died with a will
2. Traditional statute
a. (1) The spouse can take under the decedent’s will, or
b. (2) The spouse can renounce the will and take a fractional share of the decedent’s estate.
3. Policy justifications
a. Partnership model of marriage
i. The surviving spouse contributed to the decedent’s acquisition of wealth and
deserves to have a portion of it.
b. Support model of marriage
i. The estate should provide the surviving spouse with adequate support. If spouse
dies before requesting her elective share, then the elective share should not be
granted to her estate.
4. Tension between policy justifications
a. The elective share (implementation)
i. PT – militates toward awarding the surviving spouse one-half of the decedent’s
property acquired during marriage
ii. ST – justifies a smaller share but would apply it to all decedent’s property
b. Exclusion of W by will, W dies before exercising her right to election
i. PT – W’s personal representative should be allowed to renounce H’s will and
take a forced share, passing the share to W’s heirs or devisees.
ii. ST – W no longer needs support after death so the property would pass to H’s
heirs and devisees.
1. UPC follows this view.
c. Can the elective share be satisfied with a life interest in property held in trust?
i. PT – no.
ii. ST – yes.
5. Size of Elective Share
a. Most states give a fixed fractional share (1/3) of decedent’s estate regardless of the length
of the marriage
b. 1990 UPC – the surviving spouse receives a sliding scale percentage of the elective share
amount, based upon the duration of marriage.
i. 3% after one year, growing to 50% after 15 years of marriage.
ii. A sliding scale or accrual elective share also deals more equitably with second
marriages among the elderly.
6. Note: The elective share is usually for a widow because women tend to outlive men.
iii. Note: The Estate Tax Marital Deduction and the Dependency of Women
1. The changes in the federal estate tax law is that today the following transfers qualify for the marital
deduction:
a. (a) H transfers property outright or in fee simple to W;
b. (b) H creates a trust giving W income for life and a power to appoint the trust principal at
death to whomever she pleases (a life estate coupled with a general power of
appointment);
c. (c) H creates a trust giving W income for life (a QTIP trust).
i. Surviving spouse has a right to the income from the property for life but does not
have power of appointment.
1. goes back to the old support notion.
2. Theory: spouses ought to be encouraged to provide for each other in their wills.
iv. In re Estate of Cross, 664 N.E.2d 905 (Ohio 1996)
1. H dies testate leaving all his property to his son, to the exclusion of W. W is incapacitated, has
Alzheimer’s disease and lives in a nursing home paid by Medicaid. W was unable to elect against
the will. The probate court appointed a commissioner to make recommendations as to whether W
should elect against the will. The probate court found that she should against the will. The appeals
court reversed. The commissioner appeals on behalf of W (since deceased).
2. Issue. Whether the probate court abused its discretion in electing for decedent’s surviving spouse,
who depended upon Medicaid benefits for her support and care, to take against the will? No.
3. RULE
a. Where the surviving spouse is under a legal disability, the probate court may elect for the
surviving spouse to take against the will only if it finds, after taking into consideration the
other available resources and the age, probable life expectancy, physical and mental
condition, and present and reasonably anticipated future needs of the surviving spouse,
that the election to take is necessary to provide adequate support for the surviving spouse
during his life expectancy.
i. More than a mathematical consideration
b. Medicaid problem
i. If a person has resources including property owned separately by the person, his
share of family property, and property devised to him from a parent or spouse,
and he decides to not use them, the person becomes ineligible for benefits.
c. If W did not elect against H’s will, she would receive no income and would be deemed
ineligible for benefits for failing to avail herself of potential income.
v. Incapacity of surviving spouse
1. If the surviving spouse is incompetent, a guardian of the spouse can elect against the decedent’s
will if it is in the best interests of the spouse, with approval of the probate court.
a. Minority rule. The guardian should elect to take against the will if it is to the surviving
spouse’s economic benefit, calculated mathematically.
b. Majority rule. All the surrounding facts and circumstances should be taken into
consideration by the probate court. Also, the guardian is allowed to take into account the
preservation of the decedent’s estate plan and whether the surviving spouse would have
wanted to abide by her dead spouse’s will.
2. UPC § 2-203 (1969) The probate court, acting for an incompetent could order election against the
person’s will only after finding that exercise is necessary to provide adequate support for the
protected person during his probable life expectancy. (elective share is going to surviving spouse)
a. 1990 UPC § 2-212 provides that if a conservator or guardian elects the elective share, the
portion of the elective share that exceeds what the decedent spouse provided for the
survivor must be placed in a custodial trust for the benefit of the surviving spouse.
i. At the time of the surviving spouse’s death, the trustee must transfer the trust
property to the residuary devisees under the will of the predeceased spouse in
order to conserve the estate plan.
vi. In re Estate of Cooper
1. T died testate leaving everything to petitioner as a specific and residuary legatee, with the
exception of certain real estate (over 80% of the value of the estate), which was left to a former
homosexual lover of T. Petitioner claims that he is entitled to exercise a right of election against
decedent’s will.
2. Issue. Whether the survivor of a homosexual relationship is entitled to a right of election against
T’s will. No.
3. Holding. A survivor of a homosexual relationship, alleged to be a spousal relationship, was not
entitled to a right of election against the decedent’s will.
b. Property Subject to the Elective Share
i. Overview
1. The original elective share statutes gave the surviving spouse a fractional share of the decedent’s
estate, which implicitly meant the probate estate.
2. Should non probate transfers also be included in the estate
ii. (1) Judicial Responses to whether nonprobate transfers may be reached by the elective share
1. Sullivan v. Burken (Mass 1984)
a. Facts. P is the widow of testator. She seeks a determination that assets held in an inter
vivos revocable trust created by her husband during the marriage should be considered as
part of the estate in determining that share. His will poured-over into the trust. The
testator stated in his will that he intentionally neglected to make any provision for P. Ds
are coexecutors of the will and beneficiaries of the trust.
b. PH. Probate court rejected the widow’s claim.
c. P’s claims: (1) Trust assets are part of the estate or (2) trust was an invalid testamentary
disposition.
d. Court’s findings:
i. Trust is not an invalid testamentary disposition simply because the settler
retained a broad power to modify or revoke the trust, the right to receive income,
and the right to invade principal during his life.
ii. Are the trust assets part of the estate?
1. Old rule: the elective share does not extend to personal property that has
been conveyed by the husband in his lifetime and does not form part of
his estate at his death.
2. New rule: Assets of inter vivos trusts created during the marriage by the
deceased spouse over which he or she alone had a general power of
appointment, exercisable by deed or by will, are included in the meaning
of “estate” and therefore, the spouse is entitled to take part of those
assets through the elective share.
iii. The new rule will only apply to inter vivos trusts executed after the date of the
decision. P in this case has no remedy.
e. Requirements
i. Trust must be created during the marriage
ii. General power of appointment
iii. Power to revoke
2. Bongaards v. Millen (Mass 2003)
a. Wife dies leaving her husband out of her will. W had a life tenant interest in a trust
established by her mother. W had limited, testamentary power of appointment over the
remainder and during her life she could have terminated the trust and had the corpus of the
trust paid to her. W never terminated the trust and appointed her sister to have the
remainder. H sues to reach the trust through the elective.
b. The court holds that the trust property is not subject to P’s elective share for the single
reason that the trust was created by a third party (W’s mother). The rule in Sullivan
applies only to assets of a trust created during the marriage by the deceased spouse
i. The court refuses to extend the reach of the elective share into a deceased
spouse’s property. Sullivan only closed a loophole through which spouses were
able to evade the elective share. The statute should not be expanded to frustrate
the intent of a third party who is a stranger to the marriage.
ii. A third party has no obligation to support someone else’s spouse, and property
owned by a third party has never been part of someone else’s spouse’s elective
share estate.
c. The other piece of property was Totten (savings account) trust to the estate created by
Jean.
i. Terms are that Jean has access to the Totten trust and has no obligation to
account to anyone for the money. The money at her death goes to the person
named on the bank card (Nina). Does George’s election against the will reach
the Totten trust?
1. Nina is not a joint tenant.
2. Under the terms of the account, Nina gets the property only if George’s
claim does not get it first.
a. The surviving spouse’s right of election can beat anyone else.
3. Yes. It was created during the marriage, W had the power of
appointment and the power to revoke. George’s claim does reach the
Totten trust
3. Cases illustrate the hopeful reach of the elective share: reach into non-probate assets of the
decedent.
4. Other tests
a. Illusory Transfer test
i. An illusory revocable trust is not invalid but it does count as part of D’s assets
subject to the elective share
ii. The trustee may have to contribute some of the trust assets to make up the
elective share
iii. Key: Amount of control retained by decedent spouse
1. look at it at the time when the account was established
b. Intent to Defraud
i. Issue. Whether the decedent spouse intended to defraud his surviving spouse of
her elective share
ii. Subjective intent
iii. Evidence of intent
1. The control retained by transferor
2. The amount of time between transfer and death
3. The degree to which the surviving spouse is left without an interest in
the decedent’s property or other means of support
c. Present Donative Intent
i. Issue. Whether the decedent had a present donative intent to transfer a present
interest in the property. This test focuses not on what the transferor retained, but
on whether the transferor intended to make a present gift.
d. In some states, such as Connecticut and Ohio, revocable trusts and other nonprobate
transfers are not subject to the elective share.
e. Which law applies when decedent lived in one state and owned property in another?
i. Rule: the law of the decedent’s domicile governs the right to take an elective
share of property located in another state. (UPC 2-202)
ii. Other states apply the standard conflict of laws rule that the law of the state
where the real property is located governs the elective share in such real property.
iii. (2) Statutory Schemes
1. There is more difference here than in any other area of the law.
2. Many state legislatures have enacted statutes providing objective criteria for determining what
nonprobate transfers are subject to the elective share. They favor a clear list of non probate
transfers that are added to the probate estate to constitute a net estate or an elective estate against
which the surviving spouse may elect to take his or her statutory share.
3. Types
a. Net estate
i. Replaces the illusory transfer test
ii. NY Statute
1. Gives the surviving spouse $50,000 or one-third of decedent’s net
estate, whichever is greater, plus a personal property set aside.
2. The net estate includes the following nonprobate transfers
a. Gifts causa mortis
b. Gifts made within one year before death, except gifts < $11,000
per person
c. Savings account (Totten) trusts
d. Joint bank accounts, to the extent of D’s contribution
e. Joint tenancies and tenancies by the entireties, to the extent of
D’s contribution
f. Property payable on death to a person other than D
g. Lifetime transfers in which D retained possession or life
income or a power to revoke or a power to consume, invade, or
dispose of the principal
h. Pension plans or the like
i. Other property which D had general power of appointment
enabling him to appoint the property to whomever he pleases.
3. The amount of the elective share is reduced by deducting the value of
any interest, other than a life estate, which passes from D to the
surviving spouse by intestacy, by will, or by will substitute.
b. Elective estate
i. All property includible in D’s gross estate under the federal estate tax, whether or
not D files an estate tax return.
1. If a nonprobate transfer is taxable at death, the surviving spouse can
reach it.
2. Inclusion of all things D has and gave away during lifetime
iv. (3) The Uniform Probate Code
1. (1969) Augmented Estate – the probate estate augmented with certain nonprobate transfers –
KNOW THIS FOR EXAM
a. The surviving spouse is entitled to an elective share of one-third of the augmented estate.
b. Includes the following nonprobate and inter vivos transfers made without consideration at
any time DURING THE MARRIAGE
i. Any transfer under which D retains the right to possession or income from the
property; (date of death value)
ii. Any transfer which D can revoke or invade or dispose of the principal for his
own benefit;
iii. Any transfer in joint tenancy with someone other than the spouse;
iv. Any transfer made within two years before death exceeding $3,000 per donee per
year (now the Federal gift max amount exempt is $11,000, still $3K now);
v. Property given to the surviving spouse during life, including a life estate in a
trust and property received by the spouse at death derived from D, such as
insurance or pensions.
c. Expressly excludes life insurance payable to a person other than the surviving spouse in
that it is not ordinarily purchased as a way of depleting the probate estate and avoiding the
elective share of the spouse.
d. Where does the money come from to fund the elective share?
i. (1) Take out property she has already received.
ii. (2) The rest of the elective share comes from the net probate estate
iii. (3) The beneficiaries of the probate state have their share reduced pro rata.
c. Augmented Estate Example (class hand-out): (the 1969 version analysis)
i. Probate Estate - $800K
ii. Add: Blackacre added back at date of death value, $100K
iii. $100,000 cash in trust – Add, where decedent can revoke
iv. Joint tenancy with brother – Add $50K back
v. $15K cash to Sally – Add back $12K
vi. AT&T stock – Add back $200K at date of death value
vii. Life insurance policy payable to W – Add back $100K – only add life insurance into the augmented estate if
payable to wife, if policy on decedent’s death to other person, you DON’T add back
viii. During the marriage W received $1.25 mill from father’s estate – Not relevant in 1969 UPC
1. Augmented Estate: $1,362,000 X 1/3 (share of estate) = $454,000
2. How do we fund $454K? First: property to surviving spouse – Stock and life insurance total
$300K - $154 left to distributed from
a. Second, Net probate estate $800,000 - $154K = $646K
b. Entire $646K will go to son and daughter, they will share amount
ix. She must decide if $300K life estate is worth as much or more than $154K cash now. How old is she?
d. 1990 UPC –
i. Fractional proportion is eliminated, sliding scale
1. Here, she can receive up to 50%
ii. Add into augmented estate, the value of surviving spouse’s estate on decedent’s date of death.
1. $1.5 mill gift from her father makes estate worth: $2.862 million
2. 50% = $1.431 million
iii. How do you fund $1.431 million?
1. Subtract her half of estate $1.5 mill, so 0.
2. The wealthier spouse survived, so elective share produces 0.
3. (1990) Closer to the result of a community property system
a. Basic concept: add up all the property of both spouses and split it according to a
percentage based on the length of the marriage.
b. Includes in the augmented estate many transfers made before marriage, as well as transfers
made during marriage, where D retained substantial control of the property.
i. Includes property or powers received from others. (Mimics the IRS code).
c. Theory: To implement the partnership theory by increasing the entitlement of a surviving
spouse in a long-term marriage in cases in which the marital assets were
disproportionately titled in D’s name.
d. How is the augmented estate computed?
i. Determine the elective share percentage
1. under a schedule: 3% after one year of marriage, growing to 50% after
15 years of marriage
ii. Determine the value of the augmented estate. Add up the following
1. value of D’s net probate estate
2. value of D’s nonprobate transfers to others, consisting of will-substitute-
type intervivos transfers made by D to others than the surviving spouse
3. value of decedent’s nonprobate transfers to the surviving spouse,
consisting of will-substitute-type inter vivos transfers made by D to the
surviving spouse
4. value of the surviving spouse’s net assets at D’s death, plus the
surviving spouse’s nonprobate transfers to others
iii. Determine the “elective share amount
1. multiply the augmented estate by the elective share percentage.
iv. Note: Must the surviving spouse accept a Life Estate
1. Once the elective share is determined, when the surviving spouse elects against the will, she is
usually credited with the value of all interests given her by the will. If the amount of the bequests
to the surviving spouse does not satisfy the elective share, the difference must be made up either by
pro rata contributions from all other beneficiaries (majority rule) or from the residuary state
(minority rule).
2. If the living spouse is left with a life estate, must she accept the life estate or its value in partial
satisfaction of her elective share?
a. 1969, 1990 UPC – the surviving spouse who rejects the life estate is charged an amount
equal to one-half the total value of the property subject to the life estate.
i. The surviving spouse is thus forced to take the life estate in order to cause as
little distortion in D’s estate plan as possible.
b. 1993 UPC – provides that a life estate renounced by the surviving spouse is not charged
against her elective share.
c. Two sates offer only a life estate as the elective share (Connecticut and Rhode Island)
i. A surviving spouse can take under the will or elect to take a life estate as the
forced share.
e. Waiver
i. Overview
1. A spouse can waiver her rights to the elective share through a premarital agreement.
a. Uniform Premarital Agreement Act – recognizes the enforceability of premarital
agreements. Enacted in over half the states.
b. Every separate property state recognizes the validity of premarital agreements, enforcing
waiver of the right of election.
ii. UPC § 2-213 Waiver of Right to Elect and of Other Rights
1. (a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead
allowance, exempt property, and family allowance , or any of them, may be waived, wholly or
partially, before or after marriage, by a written contract, agreement, or waiver signed by the
surviving spouse.
2. (b) A surviving spouse’s waiver is not enforceable if the surviving spouse proves that:
a. (1) he or she did not execute the waiver voluntarily; or
b. (2) the waiver was unconscionable when it was executed and, before execution of the
waiver, he or she:
i. (i) was not provided a fair and reasonable disclosure of the property or financial
obligations of the decedent;
ii. (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the decedent beyond the disclosure
provided; and
iii. (iii) did not have, or reasonably could not have had, an adequate knowledge of
the property or financial obligations of the decedent.
3. (c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
4. (d) Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the
property or estate of a present or prospective spouse or a complete property settlement entered into
after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead
allowance, exempt property, and family allowance by each spouse in the property of the other and a
renunciation by each of all benefits that would otherwise pass to him or her from the other by
intestate succession or by virtue of any will executed before the waiver or property settlement.
iii. In re Estate of Garbade (NY 1995)
1. Court is very harsh on surviving spouse who now claims she was inadequately advised. Court says
tough luck
iv. In re Griff (NY 1998)
1. Court takes more of a nuanced view and sends it back to determine if the terms were too harsh and
if spouse received effective counsel.
Section A. Introduction
1. Types of Powers
2. Does the Appointive Property Belong to the Donor or the Donee?
a. Irwin Union Bank & Trust Co. v. Long
b. Note: Tax Considerations for Powers