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TEACHING HYPOS -- WILLS LAW I.

INTESTATE SUCCESSION
A. Basic principles and terminology. Probate (literal translation: to prove): Court
proceeding in which: (i) it is judicially determined that the decedent left a validly executed will (or that the decedent died without a will and his intestate heirs are determined),

(ii) a personal representative (called an executor if named in a will, an administrator if appointed by the court from a statutory list of preferred next of kin) is appointed to administer the decedent's estate and wind up the decedents affairs, and (iii) letters testamentary (if an executor) or letters of administration (if an administrator) are issued by the court, showing the personal representatives authority to represent the estate in dealing with third parties. The probate estate does not include (and wills and the intestate succession rules do not apply to) non-probate transfersinterests that pass by right of survivorship (e.g., a joint and survivor bank account) or under the terms of a contract (e.g., life insurance proceeds or employee death benefits). Strictly speaking, you probate the decedents will and then you administer the decedents estate. However, the entire process is commonly called the probate process, involving a probate administration. While it may not be technically correct, this terminology is widely used. The principal duties of a personal representative are to (i) take possession and control of the assets that comprise the estate, (ii) give notice to creditors and pay creditors claims, (iii) satisfy the tax authorities, and (iv) distribute the remaining estate to the will beneficiaries or heirs. A person who executes a will is called the testator: Persons who take by intestate succession are called heirs: Persons who take under a will are called beneficiaries (or devisees, or legatees). At common law, one devised real property, and bequeathed money or personal property. This distinction is no longer made. A will can say I devise, I bequeath, I give, or I leaveall of these terms mean the same thing, and can employed to make testamentary gifts of both real property and personal property. Residuary estate is the estate of a testator that remains after all debts, taxes and administration expenses have been paid, and after all specific gifts and cash legacies made by the will have been satisfied. Under most wills, the residuary beneficiary is the testators preferred taker. (E.g., "I give all of the rest, residue and remainder of my estate to my wife Wendy.") Uniform Probate Code (UPC) is not at all like (e.g.,) the Uniform Commercial Code, which has been adopted in all states with only a handful of local law variations. The UPC, first published in 1969, has been enacted in only about 18 states, only about one-half of which have enacted the Revised (1990) UPC, which was revised yet again in 2008. However, a number of non-UPC states have made selective adoptions of some of the UPC provisions. For this reason, my lectures will discuss the UPC provisions as well as majority rules and minority rules.
Prepared by Professor Stanley M. Johanson The University of Texas

Copyright 2011 by BARBRI, a Thomson Reuters business

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B. When do the intestate distribution rules apply? The intestate distribution rules
(sometimes referred to as the laws of descent) apply when: (i) (ii) decedent left no will (or decedents "will" was not validly executed); will does not make a complete disposition of the estate (resulting in a partial intestacy) or

(iii) an heir successfully contests the will on the ground of lack of testamentary capacity or undue influence, and the will is denied probate. In several states, the intestacy rules are also invoked in questions involving a pretermitted child (born or adopted after will was executed) or an omitted spouse (testator married after will was executed).

C. Intestate share of surviving spouse


Uniform Probate Code (original 1969 version) has a different rule depending on whether the decedent's descendants were of this marriage or of an earlier marriage. Under the original UPC, the surviving spouse's intestate share is: Survived by spouse but not by descendants or parents: ALL. Survived by descendants, all of whom are descendants of surviving spouse: THE FIRST $50,000 PLUS 1/2 OF ANY BALANCE. Survived by descendants, some of whom are not descendants of surviving spousethe second marriage situation: ONE-HALF. Survived by spouse and no descendants but by one or both parents: THE FIRST $50,000 PLUS 1/2 OF ANY BALANCE. Revised Uniform Probate Code. The UPC was revised in 1990 and again in 2008 to substantially increase the intestate share of a surviving spouse, reflecting a policy that is more in line with the dispositions that most spouses make if they write wills, and also reflecting that divided families are encountered more frequently in our society. As UPC states consider whether to amend their statutes to incorporate the 2008 provisions, there are two sets of intestate succession rules (1990 amounts in brackets). Also, under the 2008 Revised UPC, the dollar amounts are indexed for inflation. Survived by spouse but not by descendants or parents: ALL. Survived by descendants, all of whom are descendants of surviving spouse, and surviving spouse has no descendants from an earlier marriagethe one-marriage situation: ALL. Survived by descendants, all of whom are descendants of surviving spouse, but surviving spouse has one or more descendants who are not descendants of the decedent: THE FIRST $225,000 [$150,000] PLUS 1/2 OF ANY BALANCE. Survived by descendants, some of whom are not descendants of surviving spouse: THE FIRST $150,000 [$100,000] PLUS 1/2 OF ANY BALANCE. Not survived by descendants, but survived by a parent: THE FIRST $300,000 [$200,000] PLUS 3/4 OF ANY BALANCE.

D. Inheritance by descendants. The Probate Codes of a few states use the term "issue"

throughout. The terms issue and descendants are synonymous, and include lineal descendants (children, grandchildren, etc.) by blood or adoption. In making a distribution among descendants, the literal translation of per stirpes is by the roots, and means one share for each line of descendants. The literal translation of per capita is by the head, and means one share for each person.

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1. Martha, a widow, dies intestate, survived by the family members listed below. What intestate distribution? Martha Al Ben Carol Donna

C-1

C-2

D-1

D-2

D-3

At common law, and in a small number of states today, the distribution rule is strict per stirpes (also called classic per stirpes), under which the shares for each line of descendants are always divided at the first generational level, regardless of whether there are any living takers at that level, and then one share for each family line. Thus in the above family tree: Al: ________ Ben: ________ C-1 and C-2: ___________ D's three children: ___________

The distribution rule under the original UPC and in most states is modern per stirpes, usually described as per capita with representation ("per capita at the first level, then by representation"): Under this distribution scheme, you cut the shares at the first generational level at which there are living takers, and then one share for each family line: Al: ________ Ben: ________ C-1 and C-2: ___________ D's three children: ___________

The distribution rule under the Revised UPC (also adopted in several non-UPC states) is per capita at each generation. Under this rule, you make the initial division of shares (with one share for each line of descendants) at first generational level at which there are living takers. Each living descendant in that nearest generation takes one share. Shares of deceased persons at that generational level are combined and then divided equally among the takers at next generational level, and so on. As a result, persons in the same degree of kinship to the decedent (e.g., grandchildren who are first cousins) always take equal shares. Under this distribution rule, the shares would be: Al: ______ Ben: ______ C-1 and C-2: ________________ D's children: ________________

E. What distribution is made if decedent is not survived by spouse or descendants?


(1) All to parents or to surviving parent (majority rule). In nearly all states, collateral kin (brothers and sisters) never inherit if an intestate decedent is survived by a parent.) (2) If not survived by parents, to descendants of parents. When inheritance is by collateral kin (e.g., brothers, sisters, and the descendants of deceased brothers and sisters), the states apply the same distribution rules (either strict per stirpes, or per capita with representation, or per capita at each generation) that they apply to inheritance by descendants.

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(3) The UPC and most states have abolished the distinction made at common law between collateral kin of the whole blood and of the half blood: Half-sisters (who shared one common parent with the decedent) take the same share as sisters of the whole blood. If Ann dies intestate survived by her sister Betty and half-sister Carol as her nearest kin, Betty and Carol each inherit one-half of Anns estate. (4) If not survived by parents or issue of parents: 1/2 to maternal grandparents (or surviving grandparent), or if neither maternal grandparent is living, their descendants; 1/2 to paternal grandparents (etc.) in same manner. (5) While most states impose no limit on the degree of kinship needed to take as an heir, the Uniform Probate Code and several non-UPC states have enacted so-called "no laughing heir" statutes: There is no inheritance by kin more remotely related than grandparents or descendants of grandparents. Instead, the estate escheats to the state.

F. Intestate share of adopted children. Adopted children and their descendants have full
inheritance rights from the adoptive family (and vice versa), and are treated in all respects the same as natural children. General rule: Once a child has been adopted by a new family, the child has no inheritance rights from the natural parents or their kin. (This is consistent with the law and policy of most states, under which adoption records are sealed, and an adopted child has no right to learn the identity of her natural parents.) Exception: Where child is adopted by spouse of a natural parent. (E.g., Clyde's father dies; mother remarries, and second husband adopts Clyde. Clyde has inheritance rights from natural mother and adoptive fatherand (in nearly all states) from the deceased natural fathers kin as well.)

G. Intestate share of nonmarital children. Constitutional litigation in 1970s and 1980s


expanded the rights of nonmarital children. As a result, in most states a nonmarital child can inherit from natural father if [the acronym is PAPfor Pappy]: ---Paternity suit: The man was adjudicated to be the father in a paternity suit; or Acknowledged paternity: The man acknowledged in writing that he was the father; or Probate proceedings: After the man's death, he is proved to have been the father of the child in the probate proceeding by clear and convincing evidence.

H. What is the effect of lifetime gifts to an heir or will beneficiary?


2. Mary gives Blackacre (worth $60,000) to her son Al on Al's 35th birthday, orally telling her other sons (Ben and Chris) that they will receive similar gifts when they reach 35. Mary dies intestate two years later without having made gifts to Bill and Chris. She left an estate valued at $300,000; what distribution? Common law: A lifetime gift to a child (or other descendant) was presumptively an advancement (advance payment) of the child's intestate share, to be taken into account in distributing the intestate estate at death. (Presumption was that a parent would want to treat all children equally.) UPC and majority rule: A lifetime gift to an heir is not an advancement unless (i) declared as such in a _________________________________________________ by donor; or (ii) acknowledged as such in a ________________________________________ by donee.

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Therefore, under the majority rule distribute Marys estate:

In #2, if there was written evidence of an advancement (or in a minority rule state the advancement presumption is not rebutted) and Al wants to share in the inheritance, Marys estate would be treated as a [$300,000+ $60,000 =] $360,000 estate to be divided three ways. Each child's share would be $120,000, with Al already having received $60,000 (date-of-gift value) of his share. In most states, the same rules apply to lifetime gifts made to a beneficiary named in a previously executed will (called the doctrine of satisfaction of legacies), as where a testator executes a will bequeathing $25,000 to her niece Nora, and thereafter gives Nora $10,000 cash. UPC and majority rule: A gift to a beneficiary named in an earlier will is not treated as in satisfaction of legacy unless (i) declared as such in a contemporaneous writing by the donor, or (ii) acknowledged as such in writing by the donee, or (iii) the will provides for reduction of legacies by any lifetime gifts. Since there is no writing, we ignore the lifetime gift. Nora takes the full $25,000 under the will.

I.

Disclaimer by heir or will beneficiary

3. Joe, who was divorced, dies intestate leaving a $1.5 million estate. He is survived by two children: Sue and Bob. Sue, a partner in a large New York law firm who has two children, wants to disclaim her interest in her father's estate. What must Sue do to make an effective disclaimer? All states recognize that no one can be compelled to be an heir or beneficiary against her will. An heir, will beneficiary, beneficiary of a life insurance policy or employee benefit plan, or any other interest in property can disclaim the interest, in whole or in part. A disclaimer also can be made on behalf of a minor or incapacitated person by a guardian, or the personal representative of a deceased person. A disclaimer, once made, is irrevocable. To be a valid disclaimer: #1. Must be in writing, signed and (in most states) notarized. #2. Must be filed within _________________* after the decedent's death. * Under the Uniform Probate Code, a disclaimer must be made within a reasonable time. However, to be valid for tax purposes a disclaimer must be made within 9 months, and most disclaimers are made for tax purposes. [For irrevocable inter vivos trusts, disclaimer must be made w/in 9 months of the transfer; the trust is read as through the disclaimant was dead when trust created.] #3. #4. #5. Disclaimer can be partial ("I disclaim one-half of the interest bequeathed to me"). A beneficiary or heir cannot disclaim after accepting an interest or its benefits. (Essentially an estoppel principle.) Disclaimant cannot exercise dominion by attempting to direct who takes by reason of the disclaimer. ("I disclaim, and I want the interest to go to my husband Horace.")

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If Sue makes an effective disclaimer, how should T's estate be distributed?

Why would anyone want to disclaim an interest in a decedents estate? ______________________________ __________________________________

J. What rules apply in cases of simultaneous death?


4. Mother and Sonny, riding in a car, are hit broadside by a train. Both die instantly. Mother did not leave a will. For purposes of distributing Mother's intestate estate, is Sonny an heir... ________ If the controlling law is the Uniform Simultaneous Death Act? Uniform Simultaneous Death Act [USDA]: When title to property depends on order of deaths and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each passes as though he or she survived (absent contrary provision). Intestacy: As though the intestate survived and the heir predeceased. Wills: Suppose, instead, that Mother left a will devising "all my property" to Sonny. Mother's estate is distributed as though the testator survived and the beneficiary predeceased. (This would invoke the lapsed gift doctrine and the anti-lapse statute, discussed infra.) Insurance proceeds, Individual Retirement Accounts [IRAs], etc.: As though insured [or IRA account owner] survived and beneficiary predeceased. If joint tenants with right of survivorship or tenants by the entirety die simultaneously: is distributed thru As estate as though A survived B, and is distributed thru Bs estate as though B survived A. Reason: Simultaneous deaths prevent operation of right of survivorship. In effect, property passes as though a tenancy in common were involved. 5. Same facts and same tragic accident except that, while Mother was pronounced dead at the scene of the accident, Sonny died at a nearby hospital 71 minutes later. Mother did not leave a will. For purposes of distributing mother's intestate estate, is Sonny an heir... If the controlling law is the Uniform Simultaneous Death Act? ________

If the state has enacted the Uniform Probate Codes 120-hour rule? ________

The 120-hour rule also applies to wills. A will beneficiary who fails survive the testator by 120 hours is deemed to have predeceased the testator (absent contrary provision). This would invoke that lapsed gift rule and anti-lapse statute (discussed infra).

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II. EXECUTION OF WILLS


A. Requirements for a validly executed will. To have capacity to make a will, the testator
(T) must be 18 years old. The rules governing will execution vary from state to state. The Uniform Probate Code (UPC) requires: #1. Signed by the testator (or someone at T's direction and in her conscious presenceproxy signature); #2. Testator must sign the will (or acknowledge his earlier signature or acknowledge the will as his will) in each witnesss presence; #3. Two attesting witnesses, each of whom witnessed either Ts signing of the will or T's acknowledgment of his earlier signature or of the will; and #4. Witnesses must sign within a reasonable time after witnessing either T's signing of the will, or Ts acknowledgment of her earlier signature or of the will.

A number of states additionally require that #5. Each witness must sign the will in the testators presence. (The UPC notwithstanding, this is the majority rule.)

A few states impose one or more of the following additional requirements: ---that the testator sign "at the foot or end" of the will. that the witnesses know they are witnessing a will, as distinguished from some other document (called the "will publication" requirement). that witnesses sign in each other's presence.

Codicil (later amendment or supplement to a will) must be executed with the same formalities.

6. Tom types a will that leaves all of all his property to his sister Sue and his neighbor Nell in equal shares. The will, which names a friend as executor, contains no attestation clause; below the signature line for the testator the will simply provides "Witnesses" and has two signature lines. Tom takes the will across the street to his neighbor Nell and asks Nell to "witness my will." Nell signs on the first witness line, then Tom signs; Tom's signature is barely legible because of an arthritic condition. Tom then takes the will to his neighbor Oscar and asks: "Would you mind witnessing this legal document for me? It needs two signatures besides mine." Tom proffers the will with his signature showing. Oscar signs, thinking he is witnessing a power of attorney. After Toms death the will, which is undated, is offered for probate. Should it be admitted?

Does it matter that the will is not dated? ________

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Does it matter that one of the witnesses signed before Tom signed? _______ The exact order of signing is not critical when execution (will signing) ceremony is _________________________________________________________________ (But where T forgot to sign when witnesses signed, and added his signature three days later in the same witnesses' presence, will denied probate; not a contemporaneous transaction. Witnesses are attesting witnesses and must attest to T's signature when they sign.) Does it matter that Tom's signature is barely legible? ________

Does fact that Nell is a beneficiary invalidate either the will or the bequest to Nell? ________ The states are about evenly divided. Bare majority rule: Interested witness situation does not affect validity of will, but witness-beneficiary loses legacy (subject to exceptions). UPC and several non-UPC most states have abolished the interested witness rule. "The signing of a will by an interested person does not invalidate the will or any provision of it."

Does it matter that Oscar did not know that he was witnessing a will? (majority rule) ________

Does it matter that Nell and Oscar didn't sign in each other's presence? (majority rule) ________

Does it matter that Toms will did not contain an attestation clause? ________

Attestation clause, which appears below the testator's signature line and above the witnesses' signature line, recites the elements required for due execution: "On the above date testator declared to us that the foregoing instrument was her will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We now sign the will as attesting witnesses in testator's presence and in the presence of each other." Value of an attestation clause: such a clause is:

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An attestation clause can be important in two situations: (1) (2) Witness with bad memory. "Probate of a will does not turn on memory of the attesting witnesses." Hostile witness.

Self-proving affidavit procedure now available in nearly all states recognizes that most probates are harmonious, nonlitigious affairs in which no one is challenging the validity of the will's execution. Can be executed at any time after the will is signed, but invariably is signed at the same ceremony: T and witnesses sign will, then T and witnesses execute sworn affidavit before notary public. Affidavit recites statements witnesses would testify to in open court (T was over age 18; witnesses signed in T's presence; in witnesses' opinion T was of sound mind, etc.). Unlike an attestation clause (which merely corroborates the witnesses' testimony), the affidavit serves the same function as a deposition or interrogatory: it is a total substitute for live testimony of the attesting witnesses in open court. 7. Tillie downloads a will form from the Internet, and carefully fills in the blanks by typing in the names of the beneficiaries, executor, etc. After she has completed the form, Tillie asks Norman, a notary public, to assist her in signing the will. Tillie signs; then Norman signs and affixes his notarial seal, overlooking the fact that there are two signature lines for witnesses. Tillie dies two years later. NO Can Tillies will be admitted to probate in most states, given that it has only one witness? YES Can Tillies will be admitted to probate in a state that has enacted the Revised Uniform Probate Code? Under the Revised UPCs dispensing power statute (also known as the harmless error statute), the probate judge can excuse full compliance with the formalities required for execution of a will if there is clear and convincing evidence that testator intended the document to be her will.

B. What constitutes presence? A number of states require that the witnesses must sign in
8. T is confined to a hospital with a contagious disease, his bed hidden by a heavy vinyl screen. The will is handed to T at a point when the two witnesses are standing in the doorway to the room, not in T's line of sight because of the screen. From behind the screen T says, "This looks all right; where do I sign?" After T signs the will, a nurse carries the will to the doorway where the two witnesses sign under the attestation clause; T cannot see either of them sign. Was the will validly executed?

testator's presence; and the UPC requires that the testator either sign the will or acknowledge his signature or the will in each witness's presence. What constitutes "presence"?

Under line of sight ("scope of vision") test (minority rule): NO Witnesses must be in testator's line of sight. Testator does not have to see the witnesses sign, but the witnesses must be within the uninterrupted range of testator's vision when they sign, so that testator could have seen them sign if he had looked. (Swivel chair case: If testator, staring out window when witnesses signed on a table behind her, had turned around in her swivel chair, she could see the witnesses.) Under the conscious presence test (majority rule): _YES It is not necessary that testator should actually be able to see the witnesses when they sign. They are in his presence whenever he is so near to them that he is conscious of where they are and what they are doing, and he could see them with a slight physical effort on his part. (e.g., by peeking around that vinyl screen.) BUT where (after testator and W-1 signed) the attorney took the will to an adjoining room where W-2 signed it, W-2 did not sign in testator's presence under either test.

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9. Mel was in a hospital's Intensive Care Unit, having suffered a heart attack. A will was prepared for Mel, and was brought to the hospital room, along with two of Mel's neighbors who were to serve as witnesses to the will. The lawyer read the will aloud to Mel, who said "That's just fine; where do I sign?" Mel signed the willbut immediately thereafter suffered a massive seizure and collapsed back on the bed. Paramedics rushed in and, in the presence of the stunned neighbors, worked alongside two nurses in administering CPR to Melto no avail. About seven minutes later, Mel was pronounced dead. At that point, the lawyer said to the neighbors, "well, that's too bad; but as long as you're here you might as well sign the will as witnesses," which they did. Is Mel's will admissible to probate? NO Majority rule: Witnesses must sign in the testator's conscious presence.

______ Uniform Probate Code:

C.

Attorney liability to will beneficiaries for negligence

10. In a state that requires that the attesting witness must sign the will in the testators presence, Larry Lawyer prepares a will for Tina and supervises the will's execution. The will is signed by two witnesses, but one of them did not sign the will in Tina's presence. As a result, the will is denied probate, and Tina's estate passes by intestacy to Tina's heirs. Do the intended will beneficiaries have a cause of action against attorney for negligence? Minority rule: NO because there is no privity of contract

Under the minority rule [New York, Ohio, Virginia, Texas], an attorney's duty runs only to:

Majority rule: _______ because _________________________________________ Under the majority rule, attorney's duty also runs to:

D.

Holographic wills

11. Winkie writes a document in her own handwriting that reads: "July 24, 1998. I, Winkie Waters, declare that this is my last will. I leave all my property to the Morris Crippled Children's Home." The writing is not witnessed; is it admissible to probate? The UPC and about 30 states recognize holographic willshandwritten and signed but unwitnessed wills. In these states, upon proof that the material provisions of the will were wholly in Winkies handwriting, it is admissible to probate as a holographic will.

But all states that allow holographic wills require that such wills be signed by the testator. Was this will signed by Winkie?

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"However, many states do not recognize holographic wills. Except (in a few states) for persons serving in the armed forces or mariners at sea, all wills must be in writing and attested by two witnesses. In those states, the handwritten, unwitnessed document is not admissible to probate." Important note: If the facts of ANY Wills question include a handwritten letter, note or memorandum signed by the testator, you must discuss majority and minority rule (as above); whether it can be given effect as a holographic will (or holographic codicil to an attested will).

E. Conditional wills
12. Ted writes a will that is properly signed and witnessed: "I am going on a mountain-climbing expedition to the Himalayas. If anything happens to me on the trip, I leave all of my property to my good friend, Alice Adams." Ted climbs Mt. Everest that summer, returns from the trip in July, and dies three years later without having changed his will, which is found in his desk drawer. Does Alice take Ted's estate under the will? Was this a conditional will, meaning that probate should be denied because the condition did not occur (i.e., nothing happened to Ted on his trip)? Or did Ted's reference to the dangerous journey he was about to undertake merely reflect the motive or inducement for making a will? (i.e., the dangers he faced on the trip prompted him to think of the possibility of death and the need for a will.)

... and what about which was found in his desk drawer?

III. REVOCATION OF WILLS


A. What constitutes a valid revocation? A will can be revoked only:
(1) by a subsequent testamentary instrument, executed with appropriate formalities, or (2) by physical act (burning, tearing, canceling, obliterating, or other act of destruction). Under the Revised UPC, the dispensing power (harmless error) statute applicable to the execution of wills also applies to attempted revocations. The probate court can relax the statutory requirements, if there is clear and convincing evidence that the testator intended to revoke her will. 13. Hobie's will is found among his papers after his death. At the bottom of each page of the threepage will is written, in Hobie's handwriting, "This will is VOID. Hobie Gates." Valid revocation by subsequent instrument if the state recognizes holographic wills? YES_ It's in his handwriting and signed; doesn't have to be on a separate sheet of paper.

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Valid revocation by subsequent instrument if the state has enacted the Uniform Probate Codes dispensing power statute? YES__ We have clear and convincing evidence that Hobie intended to revoke his will. Valid revocation by subsequent testamentary instrument if the state does not recognize holographic wills (and has not enacted the UPCs dispensing power statute)? ________

Valid revocation by physical act? ________

Suppose Hobie had crossed out his signature with an X. Revocation by physical act? ________

14. The executed copy of Adam's will is in his safe deposit box; a xerographic copy showing all of the signatures is in Adam's desk at home. Adam destroys the xerox copy with the intent to revoke his will. Valid revocation by physical act? ________ Physical act must be:

15. Ted calls his attorney on the phone and tells him, "Revoke my will. I'll come down to your office next Monday and write a new one, but for now I don't want that old will." The attorney gets Ted's will out of the file, puts a large X across each page, and then tears the will into twelve pieces. He tells Ted, "I have destroyed your will. Be sure to come in on Monday. We sure wouldn't like to have you die intestate. Heh, heh." Ted is struck by lightning and is killed on Sunday. Was Ted's will validly revoked? ________ Revocation by physical act by another person (proxy revocation), must be: (1) ________________________________ and (2) __________________________________

15a. But how can Ted's will in #14 be probated if it was destroyed? _________________________________________________________________________ (1) Proof of due execution (testimony of attesting witnesses) as in any case. (2) Cause of will's nonproduction must be established. (Must overcome presumptions as to revocation set out below.) (3) Contents must be substantially proved by copy of will or by testimony of witnesses who have read the will or heard it read.

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B. Presumptions regarding revocation. (1) Where a will, last seen in testator's possession or

under his control, is not found after death, presumption is that the testator revoked the will by physical act. (2) Where a will, last seen in testator's possession or control, is found mutilated after testator's death, presumption is that the testator did the mutilating (i.e., revocation by physical act). (i) Neither presumption arises if the will was last seen in the possession of someone adversely affected by its contents. [Recent case: Shortly after T's death, desk where will was located was "tidied up" by one adversely affected by the will.] Evidence is admissible to rebut the presumption of revocation where will cannot be found or is found in damaged condition. [E.g., will destroyed in fire that killed testator.]

(ii)

16. Tim executes "my last will." Two years later, Tim executes another "my last will." The second will does not contain language of revocation, and does not even mention the earlier will. To the extent possible, you read the two instruments together. The second "last will" is treated as a codicil to the first will, and revokes it only to the extent of inconsistent provisions. But if the second will is wholly inconsistent with the earlier will (the first will gives "all my property to Al" and the second gives "all my property to Betty," the first will is revoked by implication. Revocation of codicil to a will does not revoke the will; and (majority rule) the part of the will that was modified or revoked by the codicil is restored and takes effect as though the codicil had never been written.

C. What is dependent relative revocation?


17. Teresa executes a will (Will #1) that bequeaths her estate in trust: income to daughter Sally for life, remainder to Sally's children. Teresa later types out a will (Will #2) that purports to revoke Will #1 and leaves her estate outright to Sally. However, Will #2 is signed by only one witness. Saying "this will is no good now," Teresa destroys Will #1. Teresa dies; she is survived by Sally and by her son Jack, whom she intended to disinherit. What do we do, given that the second "will" is not a will (not validly executed)? DEPENDENT RELATIVE REVOCATION should be applied by the court. "DRR" permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of another disposition (here, Teresa's mistaken belief that she had validly executed Will #2). Effect would be to disregard the revocation of Will #1 (the will that was revoked based on a mistake of law) and permit its probate. Rationale: It is better to disregard the revocation and let Teresa's estate to pass into a trust for Sally and her children than to have half of her estate pass by intestate distribution to Jack, whom Teresa intended to disinherit. DRR is sometimes called the second best solution doctrine. [The best solutiongiving effect to Teresa's intent by probating Will #2isnt possible because it was not properly witnessed.] The doctrine should be applied only if by disregarding the revocation we come closer to what the testator tried but failed to do than would an intestate distribution. If Will #1 said "outright to Sally" and the improperly witnessed Will #2 said "outright to Hobie Gates" and the other facts were the same, DRR would not be applied. T's revocation of Will #1 (in effect, "I do not want Sally to take") would be independent of her intent to make a new will in favor of Hobie. To disregard the revocation of Will #1 would defeat T's intent. On these facts, the conventional rules would be applied and an intestate distribution would be made.

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But if we disregard the revocation of Will #1 because the court decides to apply DRR, how can we probate that will when Teresa has destroyed it? Proof of lost wills statute.

D. Changes on face of will after it has been signed and witnessed


18. Elsie's typewritten will makes a number of legacies, including: "10. I give the sum of $5,000 to my nephew, Hobie Gates." "11. I give the sum of $2,000 to my niece, Susan Slade. Elsie decides to make some revisions in her will without the assistance of an attorney. Using a marking pencil, she deletes clause 10 and strikes the $2,000 in clause 11. Using a ball point pen, Elsie writes in $5,000 above the crossed out $2,000, and initials and dates the margin alongside these changes. Elsie dies three years later. What is the effect of these changes on the face of the will? Was the legacy to Hobie Gates validly revoked? (Majority rule) ________ "A few states (Illinois, New York, Texas) do not recognize partial revocation by physical act. However, in most states and under the Uniform Probate Code, partial revocations by physical act are valid." Does Susan get the $5,000 legacy? (Overwhelming majority rule) ________ Words added to a will after it has been signed and witnessed are:

But under the Revised Uniform Probate Code (that harmless error or dispensing power statute once again), the answer is YES. Susan takes the $5,000 because we have clear and convincing evidence that Elsie intended to modify the will by making the alteration.

When Elsie crossed out the "$2,000" before writing in "$5,000," she revoked the $2,000 legacy by physical act. Is Susan nonetheless entitled to the $2,000? _________

Suppose that Elsie, after crossing out the $2,000, writes in "$500" above it. Does Susan get the crossed-out $2,000 under dependent relative revocation? _________ [What was Elsie telling us when she crossed out "$2,000" and wrote in "$500"?]

Suppose Elsie crossed out "$2,000" and wrote in "$5,000" immediately before the will was signed and witnessed. Are the changes valid? _________

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IV. WILL BENEFICIARY DIES DURING TESTATOR'S LIFETIME


A. Lapsed gifts and anti-lapse statutes
19. Tom executes a will that provides: "I devise Blackacre to my son Sam, and I leave my residuary estate to my sister Mary." Sam dies two years later, survived by his wife Wendy and his son Junior; Sam leaves a will that devises "all my property" to Wendy. Tom died two months ago, survived by Sams wife Wendy, Sam Jr., and Toms sister Mary. Who takes Blackacre? a. When a will beneficiary predeceases the testator, the gift ______________________________

You cant make a gift to a dead person; a dead person cant hold title to property
b. Unless the gift is saved by the state's anti-lapse statute. These statutes vary in the scope of cases to which they apply. Some anti-lapse statutes (e.g., Illinois) are very narrow in their operation, and apply only when deceased beneficiary was a child or other descendant of the testator. The UPC anti-lapse statute applies when the predeceasing beneficiary was a grandparent or descendant of a grandparent of the testator. Several statutes are much even broader, and apply when the predeceasing beneficiary was a relative of the testator (e.g., Massachusetts), or a relative of the spouse or former spouse of the testator (e.g., California). The predeceasing beneficiary must have been within the scope of the statute, AND must have left descendants who survived the testator. c. Therefore, Blackacre, devised to son Sam, passes to:

d.

But what of the fact that Sam left a will devising "all my property" to his wife Wendy? (Doesn't the anti-lapse statute save the gift for the deceased beneficiary's estate?)

e.

What if Sam was not survived by descendants, meaning that the anti-lapse statute doesn't apply; who would take Blackacre? If a bequest or devise lapses and the anti-lapse statute does not apply, the lapsed gift:

f.

Suppose the will gave Blackacre "to my son Sam if he survives me." Would the anti-lapse statute apply in favor of Junior (majority rule)? ________

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B. Does the 120-hour rule apply to wills?


20. In a state that has enacted the UPCs 120-hour rule, Tim's will provides: "I give all of my Micron stock to my sister Sarah, and my residuary estate to my mother Macree." Tim and Sarah are fatally injured an automobile accident. Tim is pronounced dead at the scene of the accident; Sarah dies two days later. Sarah is survived by her daughter Donna and her mother; Sarah leaves a will that devises "all my property" to the Red Cross. Who takes the Micron stock under Tim's will? Does the 120-hour rule apply to wills? __YES _ A will beneficiary who fails to survive the testator by 120 hours is treated as if he predeceased the testator (absent contrary will provision). Therefore, the Micron stock passes:

20a. Same facts as in #20, except that Tim's will provides: "I bequeath all of my Micron stock to my sister Sarah if she survives me." Who takes the Micron stock? Does the 120-hour rule apply (majority rule)? ________ If will contains language dealing explicitly with simultaneous deaths, deaths in a common disaster, or requires that the devisee survive the testator in order to take, 120-hour rule DOES NOT APPLY.

C. Lapse in the residuary estatesurviving residuary beneficiaries rule


21. "I bequeath my residuary estate in equal shares to my good friend Hobie Gates, my neighbor Bill Baker, and my son Charlie. I intentionally make no provision for my son Stephen, as I have not seen him for fifteen years." Hobie predeceases T, leaving a child (Hobie Jr.) who survives T. T, a widower, is also survived by Baker, Charles and Stephen. Who takes the residuary estate? Does the anti-lapse statute apply in favor of Hobie Jr.? ________

Who takes Hobie's one-third share of the residuary estate, then?

If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the other residuary devisees take the entire residuary estate, in proportion to their interests in the residue (absent contrary will provision). 21a. What if, in #21, it was T's son Charlie who predeceased T, leaving a child (Junior) who survived T? Hobie Gates and Bill Baker survived T. Who takes Charlie's share of the residuary estate?

The anti-lapse statute ___________________________ the "surviving residuary beneficiaries" rule.

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D. The class gift rule of construction


22. Ted's will devises Blackacre "to the children of my good friend, Joe Barnes," and devises his residuary estate to his wife Rose. At the time the will is executed, Joe has two children: Andy and Bill. After the will is executed but before Ted's death, another child (Carol) is born to Joe; and Andy dies survived by a son, Andy Jr. Then, Ted dies and his will is admitted to probate. Eighteen months later Joe has another child, Donny. Who owns Blackacre?

Andy?

Class gift rule of construction: In a gift by will to a class of persons ("children," "brothers and sisters," etc.) if a member of the class predeceases the testator, the CLASS MEMBERS WHO SURVIVE THE TESTATOR TAKE (absent a contrary will provision). Basis: testator was "group-minded" in making the gift to the class and wanted this group and only this group to share the property. [You read the will, and determine the takers of the class gift, as of testator's death.] Compare gifts to individuals: Suppose Ted's will devised Blackacre "in equal shares to Andy, Bill and Carol, the children of my good friend Joe Barnes." Andy predeceases Ted. The one-third share bequeathed to Andy lapses, and falls into the residuary estate as undisposed-of property. The residuary beneficiaries would own a share of Blackacre along with Bill and Carol. Subject to: possible application of the anti-lapse statute. E.g., if the disposition were "to the children of my son, Joe Barnes," since the beneficiary who predeceased the testator was within the degree of relationship covered by the anti-lapse statute, and since he left a child who survived the testator, Andy Jr. would take under the anti-lapse statute. The class gift rule gives way to the anti-lapse statute when the predeceasing class member is within the degree of relationship called for by the anti-lapse statute.

Why is Donny excluded from sharing in the gift, when he's a child of Joe Barnes?

Rule of convenience ("class closing rule: Rule of construction used to define the takers of a class gift. The class is closed, meaning that later-born class members do not share in the gift, when some class member is entitled to a distribution. This is done in order to determine the minimum share of each class member, so a distribution can be made without the necessity of rebate. It's called the Rule of Convenience because any other result would be INconvenient. Outright gift by will: the class closes at T's death.* * Subject to gestation principle. Common law presumption: 280 days from conception to birth

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V. CHANGES IN FAMILY AFTER WILL IS EXECUTED


A. Testator marries after will is executed
23. John executes a will that devises Blackacre (valued at $100,000) to his son Sam, and that devises his residuary estate to his sister Sue. A year later, John marries Marsha; John dies ten months later, leaving a $600,000 estate (which includes the value of Blackacre). John survived by Marsha, Sam, and his sister Sue. Who takes John's estate? Under the omitted spouse statute found in many states, if marriage follows execution of a will, the omitted spouse takes _______________________________

[But UPC limits omitted spouses share to intestate share of property only as to that portion of the estate that was not devised to testator's children or descendants who are not descendants of the surviving spouse [i.e., children from an earlier marriage). UNLESS: (i) It appears that omission was intentional; or (ii) provision was made for the spouse by transfers outside the will and it is shown that the transfers were intended as in lieu of testamentary gifts by testator's declarations, by amount of the transfer, or otherwise. [E.g., John named Marsha as beneficiary of a $100,000 life insurance policy; or remainder beneficiary of a revocable trust.] But only as to that portion of the estate that was not devised to testator's children or descendants from an earlier marriage

B. Testator is divorced after will is executed


24. Hank is married to Wendy, who has a child (Wookie) by her first marriage. Hank writes a will that devises Blueacre to Wendy, and the rest of his estate to his sister Sue. The will names Wendy as executor "if she is able; otherwise my brother Sam is to serve as executor." Two years later Hank and Wendy divorce; then Hank dies without having changed his will. Who takes Blueacre? ____________________________________ Who serves as executor? _________________________________ A final decree of divorce or annulment revokes all gifts and fiduciary appointments in favor of former spouse. The will is read and the estate is distributed (and fiduciaries are named) as though former spouse predeceased the testator.

But doesn't the anti-lapse statute apply in favor of Wendys child Wookie, then? ________

But if the couple divorce and then remarry, so that Wendy is Hank's wife at death, she takes under the will. Statute operates to revoke gifts and appointments only if they are divorced or the marriage is annulled at testator's death.

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C. Testator has child after will is executedpretermitted child statutes


25. When he made his will, Tank and his wife had one child: Alvin. After Tank made the will he and his wife adopted a child: Billy. Tank died survived by his wife, Alvin and Billy. His will left two-thirds of his $260,000 estate to his wife and the other one-third to a sister. What rights if any do the children have in this estate and why? Alvin (alive when the will was executed):

Billy? Pretermitted child (born or adopted after the will was executed) takes:

[UPC and several states: If T had other children when the will was executed and devised property to such other children, pretermitted child's share is limited to gifts to the other children; nobody else's share of the estate is reduced. Thus if T's will had devised Blackacre to Alvin, Billy would share in that gift. Alvin and Billy each would own 1/2 of Blackacre.] Unless it appears from the will (no extrinsic evidence) that omission was intentional.

25a. Same facts, except that two years after adopting Billy, Tank executes a codicil to his will that names Second Bank rather than First Bank as executor. Under the doctrine of republication by codicil, the will speaks (is republishedis deemed to have been executed) on the date of the last codicil thereto. Billy is treated as having been born before the will was executed, and has no rights as a pretermitted child.

VI. PROBLEMS RAISED BY TYPES OF TESTAMENTARY GIFTS


Specific devise or bequest: "I devise Blackacre to my son John." Demonstrative legacy: General legacy: Residuary gift: Intestate property: A general amount from a specific source. "I bequeath $25,000, to be paid from the proceeds of the sale of my Exxon stock, to Sally." "I bequeath the sum of $10,000 to my nephew Ned." "I give all the rest, residue and remainder of my estate to Betty." If a partial intestacy because the will, poorly drafted, does not contain a residuary clause.

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A. Abatement of legacies to pay creditors claims and expenses. What happens when there are so many claims against the estate that there are not enough assets to cover all of the gifts made by the will? ("Abatement" problem.) Absent contrary provision, debts and expenses are first paid out of:
(1) intestate property, if a partial intestacy for some reason; (2) then out of residuary assets, (3) then out of general legacies, and finally (4) out of specific bequests. Within each category, gifts abate pro rata; no distinction is made between real and personal property. (Nearly all states have abolished the common law rule under which personal property was sold off before any real property was touched.) Under the UPC and in most states, demonstrative legacies are treated same as specific bequest (and thus last to be abated) to the extent of the value of the specified property, and as a general legacy to the extent of any excess. If (e.g.,) the will made a bequest of $25,000, to be paid from the proceeds of sale of my Exxon stock, to Sally," but the Exxon stock was only worth $16,000 at testators death, for abatement purposes it would be treated as a specific bequest as to $16,000, and as a general legacy as to $9,000.

B. Specifically devised property not in the estate at deaththe ademption doctrine


26. Terry executes a will that devises Blackacre to his brother Bob, and his residuary estate to his wife. Two years later, Terry sells Blackacre for cash, and uses the sale proceeds to buy Whiteacre. Terry died last month without having changed his will. What does Bob take under Terry's will? ________ Where the will makes a specific gift of property, and the property is not owned by the testator at death (for whatever reason):

27. Henny's will contains this provision: "I bequeath the sum of $25,000, to be paid out of the proceeds of sale of my Shell Oil stock, to Sally." [Demonstrative legacy.] One year before her death, Henny sells all of her Shell Oil stock and uses the sale proceeds to buy Exxon stock. Does ademption apply to demonstrative (or general) legacies? ________

On Henny's death, what does Sally get?

(But if Henny owned any Shell Oil stock at her death, executor would be under duty to sell it to raise the $25,000.)

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C. Statutory exceptions to the ademption doctrine


28. Same facts as in #27 (specific devise of Blackacre), except that Terry sold Blackacre for $10,000 cash and a $90,000 note secured by a mortgage on Blackacre. At Terrys death, the balance on the note is $65,000. What does Bob take under Terry's will if the Uniform Probate Code applies?

These UPC provisions, which have been enacted in a number of non-UPC states, reverse the common law rules, which applied ademption to any case where specifically devised property was not in the estate at death. (At common law, testators probable intent was immaterial.) #1. Specific devisee takes any remaining specifically devised property and -- Any unpaid balance of purchase price (together with any security interest) by reason of sale of the property. -- Any amount of condemnation award for taking of the property, to the extent unpaid at testator's death. -- Any amount of fire or casualty insurance proceeds for damaged or destroyed property unpaid at death. Caveat: These rules DO NOT APPLY if the sale proceeds, condemnation award or insurance claim were fully paid before testator's death. (Rationale: Testator had time to change his will.) -- Property acquired as a replacement property for specifically devised property. [I devise my residence on Smith Street to my sister Sue; T sells that house and buys a residence on Oak Street.] #2. Will executed before T declared incapacitated: If specifically devised property is sold by guardian or conservator, or if condemnation award or insurance proceeds are paid to the guardian or conservator because of fire or casualty, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds. (Otherwise, guardian or conservator could change the will by deciding what assets to sell. Also, T didn't have capacity to change his will to adjust for the loss or destruction of the property.)

D. Bequests of stock and other securities


29. Tony executes a will that contains the following clauses: "5th. I give my 1,000 shares of IBM stock to Albert Avins." "6th. I give 1,000 shares of Kodak stock to Ben Baker." One year before his death, Tony sells his IBM stock and uses the sale proceeds to buy AT&T stock. Also, Tony sells his Kodak stock and invests the proceeds to buy Polaroid stock.

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a.

What does Avins get ("my 1,000 shares of IBM stock")?

b.

What does Baker get ("1,000 shares of Kodak stock")?

For ademption purposes,

30. Suppose, instead, that Tony does not sell his Kodak stock? After Tony executes the will but before his death, Kodak splits two-for-one, and certificates for 2,000 shares of Kodak stock are found in Tony's safe deposit box after his death. [Majority rule: A specific bequest of stock includes any stock produced by a stock split, stock dividend, and stock resulting from a merger, reorganization, or other action initiated by the entity after the will was executed, but does not include stock acquired by the exercise of a stock option.] Held: Baker takes all 2,000 shares of Kodak stock, because the gift of stock was a specific bequest! But how can that be, when the gift was called a general legacy in #30?? Something is going on herebut let us recognize where it is. In #30, the courts have seized on the absence of a possessive pronoun "my," calling it a general bequest to avoid ademption. But the issue here is different (stock split). A gift of stock can be specific for one purpose (stock split) and general for another purpose (ademption).

Legal realists have no difficult with this seeming contradiction. One principle explains both results: Beneficiary wins!

E. Specific bequest of encumbered propertyis the lien exonerated?


31. Teddy's will devises Whiteacre to Joan, and devises his residuary estate to Betty. On Teddy's death, Whiteacre is subject to a mortgage securing a $50,000 note on which Teddy was personally liable. Joan demands that Teddy's executor pay the $50,000 debt out of the residuary estate so that she will take title free of the mortgage lien. Is she entitled? Common law: YES the residuary estate. because liens on specifically devised property are "exonerated from

UPC and majority rule: ________* because exoneration of liens doctrine: (*unless the will directs exoneration)

Under majority rule, Joan takes exactly what testator owned: title subject to a mortgage lien.

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VII. REFERENCE TO FACTS AND EVENTS OUTSIDE THE WILL


A. Incorporation by reference doctrine
32. On July 1, 2002, Thor executes a will that provides: "I devise Blackacre to the person named in a memo dated May 4, 2002 that I have written and placed in my safe deposit box. I give my residuary estate to my brother Ben." After Thor's death there is found, in his safe deposit box, a typed memo dated May 4, 2002, signed by Thor but not witnessed: "Pursuant to my will, I want Blackacre to go to my nephew Norman." Does Norman take Blackacre under the memo, when the memo was not witnessed, and was not part of the will that was signed by Thor and the attesting witnesses? ________ An extrinsic document, not present when the will was executed (and thus not part of the duly executed will), can be INCORPORATED BY REFERENCE into the will . . . IF: #1. #2. #3. Writing must be in existence when the will was executed. Will must show an intent to incorporate the writing. Will must describe the writing sufficiently to permit its identification. ("So there can be no mistake as to the identity of the document referred to.")

32a. Same facts, except that the memo was dated May 4, 2003. ________ Incorporation by reference on these facts?

33. With Tom's will in his safe deposit box was the following typewritten, unwitnessed memo written after Tom signed his will: "In my will I referred to a list that I would prepare at a later date leaving certain items of personal property, and this is it: I leave my golf clubs to my friend, Hobie Gates, my fishing tackle to my son Sam, $2,000 to my daughter Donna, and my IBM stock to my brother Ivan. /s/ Tom Testator." If the state has enacted the controlling UPC provision, valid disposition ________ as to golf clubs? ________ as to $2,000? ________ as to the fishing tackle? ________ as to the IBM stock?

Under the UPC and several non-UPC states, statutory exception to incorporation by reference rule: Will may refer to written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (other than money, intangibles, property used in trade or business) not specifically disposed of by the will. The written list must be signed by testator, must describe the property with reasonable certainty. Can be written before or after the will is executed; can be altered at any time. Statute provides a simple and inexpensive procedure for making gifts of personal items of sentimental value, without having to amend the will everytime the client changes his mind, or wants to add to the list.

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B.

Acts of independent significance doctrine

34. Tina dies leaving a will that provides: "I give the automobile that I own at my death to my nephew Norman. I give the furniture and furnishings in my living room to my sister Sue." A year before her death, Tina had traded her 1999 Honda Civic in on a brand new Mercedes. Six months before her death, Tina moved a $25,000 Picasso print from her den and mounted it on her living room wall. What is the effect of these acts on the provisions of Tina's will? Does Norman take the Mercedes? ________ Does Sue take the Picasso? ________

Key words: Acts of independent significance; also known as doctrine of nontestamentary acts

Same result for gift of "contents of my sea chest"? *________ * Except for title documents: deeds, stock certificates, bank passbooks

VIII. OTHER WILLS DOCTRINES


A. Mistakes or ambiguities in the will
35. Tom tells his lawyer to draw his will and give his nephew Ed "300 shares of Acme stock." In typing the will, the typist makes a mistake and types the figure as "200 shares," which Tom did not notice when he signed the will. At Tom's death he owns 300 shares of Acme stock. Ed offers the testimony of Tom's lawyer that the typist made a mistake. What does Ed get and why? ________ shares:

Absent suspicious circumstances, it is conclusively presumed that:

36. "I give $10,000 to my nephew, John Paul Jones." Problem: T has a nephew James Peter Jones, and another named Harold Paul Jones, but no nephew named John Paul Jones. Who takes the $10,000? This is called a ___________________________because there is a ___________________________

Is extrinsic evidence admissible? ________

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Why do we allow extrinsic evidence in #37 and not in #36? Because in #37 we are trying to give meaning to the words that testator used in the will; whereas in #36, where the words in the will have a plain meaning, any extrinsic evidence would be an attempt to change the meaning of the words used by the testator.
What if the extrinsic evidence does not cure the ambiguity?

37. Rod's will includes: "I give the sum of Twenty-five Dollars ($25,000) to my niece Nora."

This is called a _____________________________________________________________

Is extrinsic evidence admissible? ________ Does the admissible evidence include "facts and circumstances" evidence? (evidence about the testator, his family, the claimants under the will and their relationship to the testator, testator's habits and thoughts, etc.) [Majority rule:] Does the admissible evidence include testator's declarations of intent to a third party? (E.g., he told a friend he had bequeathed $25,000 to his niece Nora.) _______ [But modern trend is to admit all types of extrinsic evidence to cure patent as well as latent ambiguities.] Does the admissible evidence include anything testator said to his attorney? ________

B. Contracts relating to wills


Under the UPC and in most states by statute, a contract to make a will or not to revoke a will, can be established only by (1) provisions in the will stating that a contract does exist and stating the material provisions of the contract," or (2) a binding and enforceable written agreement (e.g., a buy-sell agreement, or provision in a premarital agreement).

The execution of a joint will or reciprocal wills does not of itself suffice as evidence of the existence of a contract.
These statutes have eliminated troublesome litigation over joint wills (the wills of two persons on one piece of paper -- "We and each of us dispose of our property as follows. . ."), as to whether the will (wills?) was executed pursuant to a contract that the surviving party will not revoke the joint disposition. The cases sometimes found the existence of a contract merely from the execution of a joint will using plural possessive pronouns (we, us, our) that made a disposition of the combined estates. [Statute also covers if you move in and take care of me, I will leave my farm to you by my will.]

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C. Effect of words of disinheritance in a will


38. Tammy's will devises Redacre to her son Sam and her residuary estate to her husband Harold. The will provides: "I intentionally make no provision for my daughter Nancy, as she married out of the faith and has been a great disappointment to me." Two years later, Tammy divorces Harold, and two years after that Tammy dies without having changed her will. She is survived by Sam and Nancy as her nearest kin. Nancy had no children. Who takes the residuary estate? Harold?

Who takes the residuary estate, then? (majority rule) _________ to Sam and _________ to Nancy. Most states apply the common law rule, which says: When a will does not make a complete disposition of the estate (partial intestacy), words of disinheritance in the will are ineffective. Rationale: When property passes by intestate succession, it passes pursuant to the intestacy statute, not the decedent's will. "However, under the Uniform Probate Code's negative bequest rule, a will can provide how property shall NOT be disposed of, meaning that words of disinheritance are given effect; estate is distributed as though disinherited person predeceased the testator. Under the UPC, Sam would inherit the entire residuary estate.

D. Nonprobate assets are interests in property that are not subject to disposition by will or
#1. Property passing by right of survivorship (joint bank account, etc.). #2. Property passing by contract: life insurance, employee retirement benefits paid to beneficiary other than insured's executor or estate. #3. Property held in trust, including a revocable trust, where trust terms govern distribution of assets. #4. Property over which the decedent held a power of appointment.

inheritance, and do not pass through a person's probate estate for purposes of administration. Major types (also called nontestamentary assets):

39. Tom has a $100,000 Aetna life insurance policy that names Bill Bates as beneficiary. Tom dies leaving a will that provides: "I direct that the proceeds of my Aetna life insurance policy be paid to my sister Ann Painter." Who takes the $100,000 policy proceeds?

IX. ELECTIVE SHARE STATUTES


40. Winkie dies leaving a will that provides: "I give my husband Hobie Gates the sum of $23, which is one dollar for each miserable year I spent with him. I give all the rest of my property to my faithful chauffeur Claude, in appreciation of his many services." Winkie is survived by Hobie, Claude and the couples daughter Dorkie. What are Hobie's rights?