Law of Wills, 2016A

2. What was the constructive abandonment argument made in the Joyner case?
3. What is required to prove abandonment? Is abandonment enough to keep Warren from inheriting
from Frances’ estate?
4. Consider the following case. In 2010, Will and Delores were married in Maine. The couple did not
have any children. In 2013, Will and Delores had a terrible argument when she discovered that he
had quit his job to become an artist. Delores moved out of the house. She left a note stating, “When
you come to your senses, I’ll come back home.” After Delores left, Will could not afford the
mortgage payments, so he lost the house to foreclosure. Will moved to Alaska to live with his
brother. Five years later, Will sold his first painting for two million dollars. When Delores found out
about Will’s success, she contacted him and told him that she wanted to again be a couple. Will was
so happy that he booked a flight back to Maine. Unfortunately, Will’s plane hit a mountain and he
was one of the fatalities. Will died intestate survived by Delores, his sister, Grace, and his sister
Marla. Will’s grandmother, Sharon, also survived him. At the time of his death, Will’s estate was
worth 1.2 million dollars. What portion, if any, of Will’s intestate estate should Delores receive?
3.3 What does it mean to survive?
In order for a person to be considered to be a surviving spouse, he or she must survive the
decedent. The easy cases are the ones that involve situations where a person dies before his or her
spouse. The surviving spouse has the legal right to a share of the decedent’s estate. Nonetheless,
there are times when it is difficult to determine the identity of the surviving spouse. For example, if
the spouses died in a common accident, it may be impossible to definitively declare one as the
surviving spouse. This sad state of affairs has started to happen with some regularity. A high profile
case involved John F. Kennedy, Jr. and his wife Carolyn. The couple was killed when their plane
crashed into the ocean. Kennedy and his wife stayed in the oceans for several days. When their
bodies were found the medical examiner concluded that they died instantly. However, he could not
say who died first. The simultaneous death problem impacts the distribution of both intestate and
testate estates.
Legislatures and courts made several attempts to solve the simultaneous death problem. For
instance, the provisions of the original Uniform Simultaneous Death Act (USDA) of 1940 state that
if “there is no sufficient evidence” of the order of deaths, each person is considered to have died
before the other person, so neither inherits from the other. The legislatures adopting the USDA did
not give clear guidance on what was necessary to fulfill the sufficient evidence requirement. Thus,
courts were forced to evaluate the evidence on a case-by-case basis. That approach led to
inconsistent results.
There are some clear rules governing non-probate property where simultaneous death
cannot be definitely proven. Consider the following two examples. Ernie and Bert who owned a
house as joint tenants or community property owners died at the same time. Ernie was survived by
his mother, Peggy, and Bert was survived by his sister, Bernice. The court distributes Ernie’s onehalf
interest in the house to Peggy and the Bert’s one half interest in the house to Bernice. One-half
of the property is distributed as if Ernie survived and one half is distributed as if Bert survived.
When an insured and the third-party beneficiary of a life insurance policy die simultaneously, the
proceeds are distributed as if the insured survived the beneficiary.
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