Law of Wills, 2016A

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3.4.4 Fractionalize Forced Share In re Estate of Soard, 173 S.W.3d 22 (Tenn. App. Ct. 2005) CHARLES D. SUSANO, JR., This case involves a dispute between a widow and the personal representative of her husband’s estate. The parties differ as to the correct interpretation of Tenn. Code Ann. § 31-4-101 (2001), the statute setting forth the criteria pursuant to which a surviving spouse’s elective share is computed. The trial court adopted the estate’s construction of the statute and subtracted the widow’s exempt property, homestead allowance, and year’s support allowance from the value of her percentage share of the net estate in arriving at the elective-share amount to which she is entitled. We disagree with the trial court’s interpretation of the statute. Accordingly, we reverse the judgment of that court. I. The parties filed a stipulation of material facts in the trial court. The stipulation provides, in pertinent part, as follows: Frank Soard died on the 14th day of July, 2003. Frank Soard was survived by his wife, Sarah Soard, whom he had married on the 24th day of June, 1995. The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-209, Sarah Soard is entitled to payment of $5,000.00 for Homestead. The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-102, Sarah Soard is entitled to [a] Year’s Support in the amount of $13,656.00. The Parties agreed that pursuant to [Tenn. Code Ann.] § 30-2-101, Sarah Soard is entitled to $37,848.92 in Exempt Property. Inasmuch as Frank and Sarah Soard had been married more than six years but less than nine years, the Parties agreed that Sarah Soard was entitled to an Elective Share of Thirty Percent (30%) of the net estate as set out in [Tenn. Code Ann.] § 31-4-101 (a). Pursuant to [Tenn. Code Ann.] § 31-4-101(b), the Parties agreed to the following determination of the net estate as of November 11, 2003, the Parties acknowledging, however, that the administrative expenses are subject to increase based on attorneys fees and expenses incurred in this Elective Share litigation: 115
Gross Estate $872,253.32 Less: ORNL Mortgage $29,408.23 Funeral and Admin. Exp. 78,795.27 Exempt Property 37,848.92 Homestead 5,000.00 Year’s Support 13,656.00 164,708.42 Net Estate $707,544.90 30% of Net Estate $212,263.47 After determining Thirty Percent (30%) of the net estate as set out in [ Tenn. Code Ann.] § 31-4- 101(a) and (b), the Parties agreed that said maximum Elective Share amount is $212,263.47, but the Parties disagreed as to how that amount is to be reduced pursuant to [Tenn. Code Ann.] § 31-4- 101(c). (Paragraph numbering in original omitted). Although not a part of the parties’ written stipulation, it is abundantly clear from the record that Ms. Soard filed a petition for an elective share. II. Tenn. Code Ann. § 31-4-101, as it existed at the time of Mr. Soard’s death, i.e., July 14, 2003, provides as follows: (a)(1) The surviving spouse of an intestate decedent, or a surviving spouse who elects against a decedent’s will, has a right of election, unless limited by subsection (c), to take an elective-share amount equal to the value of the decedent’s net estate as defined in subsection (b), determined by the length of time the surviving spouse and the decedent were married to each other, in accordance with the following schedule: 116
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Law of Wills Browne C. Lewis Leon a
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Notices This is the first edition o
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Table of Contents Law of Wills ....
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Problems and Questions ............
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Welch vs. Wilson, 516 S.E.2d 35 (W.
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Notes and Questions ...............
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Notes, Problems, and Questions ....
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10.3.1 Fraud in the inducement ....
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12.1 Introduction .................
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Matter of Kalouse’s Estate, 282 N
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Preface Both lay persons and buddin
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Part I - The Intestacy System Chapt
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meaning of the Canon, when it becom
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In January 1998, before the husband
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that part of his estate that otherw
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disclose. Ibid. In the context of e
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eveals to Lawyer that he has just e
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meet with Jake Leno and report back
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panel’s finding that his testimon
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witness, because the hearing panel
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incompetent by a court without both
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Whether, under New Hampshire law an
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uildings used in the family busines
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Creating a duty, even under the unf
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Chapter Two: Intestacy System (Basi
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children for purposes of the distri
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Lauren, a widow, had two children,
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nominated himself as the sole perso
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(1) to the issue of the decedent; i
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stirpes,” “classic per stirpes,
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E, will receive her 1/3 share of th
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Scenario Two: Stephen dies intestat
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Thomas A. Fleming was born out of w
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In our view, the 1947 statutes coul
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asked [R.W.] how long has he and hi
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Following the fact finding hearing
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eturned to M.W. She agreed to a psy
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Dr. Dyer testified that in his opin
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U.S. 971, 101 S.Ct. 2049, 68 L.Ed.
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intestacy succession rules. Affirme
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Explanation: Willis estate will be
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Appeal dismissed, with costs to res
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Uniform Probate Code § 2-109 (a) I
Page 88 and 89: Chapter Three: Intestacy System (Su
Page 90 and 91: 5. In America, there are variations
Page 92 and 93: On February 6, 1981, Leslie died in
Page 94 and 95: property to Edith. By such action,
Page 96 and 97: eversed the separate property deter
Page 98 and 99: legislative direction to the contra
Page 100 and 101: V. Virtually every court which has
Page 102 and 103: Joan last saw Charles in the New Yo
Page 104 and 105: Helen’s petition came on for a no
Page 106 and 107: valid, the court shall declare such
Page 108 and 109: their claim to an interest in the e
Page 110 and 111: In Estate of Ricci (1962) 201 Cal.A
Page 112 and 113: which were hers by separate ownersh
Page 114 and 115: Laikola v. Engineered Concrete, 277
Page 116 and 117: the party alleging a common-law mar
Page 118 and 119: 3.2.3 Same-Sex Spouse Under the int
Page 120 and 121: There is no question that Frances
Page 122 and 123: Bell Joyner (collectively “defend
Page 124 and 125: 2. What was the constructive abando
Page 126 and 127: on New York Evidence, Section 956,
Page 128 and 129: each will, Vencie and Melba gave
Page 130 and 131: days. These provisions constitute a
Page 132 and 133: Determination of Death 30 (1982), t
Page 134 and 135: We next address the question of whe
Page 136 and 137: 3.4.3 Dower Ohio Revised Code Ann.
Page 140 and 141: If the decedent and the surviving s
Page 142 and 143: The effect of the parties’ disagr
Page 144 and 145: or model act. However, when the leg
Page 146 and 147: “how the [elective-share] amount
Page 148 and 149: allowance be deducted twice as a pa
Page 150 and 151: Thus, as the estate and the trial c
Page 152 and 153: M. Morrow, another first cousin, wa
Page 154 and 155: few other states allow the adopted
Page 156 and 157: II. Constitutionality Child next ar
Page 158 and 159: “If, for purposes of intestate su
Page 160 and 161: 2. Sylvia R. Fore married George Cl
Page 162 and 163: Fred Wulf died intestate April 30,
Page 164 and 165: Jenkins v. Jenkins, 990 So. 2d 807
Page 166 and 167: Case law in Mississippi is also cle
Page 168 and 169: Conclusion Based on the foregoing r
Page 170 and 171: Page was without authority to contr
Page 172 and 173: Moreover, the purpose of requiring
Page 174 and 175: probate records of Mrs. Margaret Wi
Page 176 and 177: Right to inherit from biological pa
Page 178 and 179: After the natural father in Halterm
Page 180 and 181: In support of her motion for summar
Page 182 and 183: This equitable principle of law has
Page 184 and 185: equitably adoptive parent's brother
Page 186 and 187: Judgment of the Circuit Court for M
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1983); Wilks v. Langley Adm’r, 45
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transcript shows that the court was
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egardless of age.” An order and j
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parent-child relationship between p
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N.E.2d 820, 822 (Ill. 1994). To det
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of an adopted adult. Accordingly, w
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arred because it is contrary to pub
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construction.” Lang, 35 S.W.3d at
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3. Ellison Sr. could have intended
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occurred.” Id. Therefore, “[t]h
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Acts of 1975, 64th Leg., R.S., ch.
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the natural parents may not inherit
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and seeking his own appointment as
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was open and uncontested and becaus
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170-B:1. The statute already consid
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5.2 Non-Marital Children Most of th
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In applying the Equal Protection Cl
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“An illegitimate child is the leg
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The New York statute, enacted in 18
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during their fathers’ lifetimes,
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Phillips v. Ledford, 590 S.E.2d 280
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(citations omitted) a positive DNA
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Class Discussion Tool LaMeesha had
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The definition of “legitimate”
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We fail to find the necessary State
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Sample State Statutes West's Annota
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legitimate from and through the chi
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Notes and Questions 1. Evaluate the
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I Thomas and Janet are the children
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elationship of an adopted child and
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‘Fifth. If the decedent leaves no
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433, 26 A.L.R.2d 249,cited by appel
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wrote his will. Although it is not
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2460; see id. at p. 2460 [Cal. Law
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foster parent] expressed a desire t
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law, viz., the meaning of the provi
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Chapter Six: Intestacy (Children of
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6.2.1 The Right to Inherit From Fat
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(c) Because the SSA’s interpretat
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The wife presented the judgment of
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Section 1 of the intestacy statute
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See, e.g., L.W.K. v. E.R.C., supra
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more complicated matter. In A.Z. v.
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posthumously conceived child. In an
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distribution statute. After a heari
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(b) Taking against the will of any
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has urged me not to adjudicate this
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going back to at least 1877. The si
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ear his children. Some may question
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of Mr. Finley. The claims were deni
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is left void, superfluous or insign
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(James's issue, in the case of cert
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In order for a post-conceived child
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unless the deceased individual cons
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Questions 1. Which one of the above
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Mitch’s sperm to become pregnant.
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Background Husband and Wife were ma
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any other file, are subject to insp
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husband will not hold them responsi
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K.S. v. G.S., 440 A.2d 64 (N.J. Sup
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In New Jersey, in order to sufficie
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protect the best interests of the c
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Turning to the specific issue befor
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Husband argues implied consent to a
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want to participate in, nor did he
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structure of the statute does not l
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6.5 The Paternity of the Sperm Dono
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parent's constitutional right to pr
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Greenwald, 743 A.2d 977, 979 (Pa.Su
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Custody order affirmed. Support ord
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a large family. Unfortunately, appr
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The analysis and law in support of
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mother under California law.” Joh
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individual's genes. If we are to re
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3. Should genetics be the sole indi
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A bond is created between a gestati
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8. Should there be a presumption th
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Passage of the Act clearly was not
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In deciding the issue of maternity
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6.6.1.4 The Best Interests of the C
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holding of the Court of Appeals tha
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In anticipation of trial, Charles a
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framework for our analysis. 2. The
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contemplate or to control the circu
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Johnson has “discarded both genet
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in any event there is now a lack of
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Instead we affirm on separate and n
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Under California law, a judgment of
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Part II —The Testacy System Chapt
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But the end of future allotment by
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action to encourage consolidation.
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deceased, and others. To review a j
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5. Suppose that Congress required r
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It will not be questioned that marr
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disowned as a member; or if she hav
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7.2.2 Some Restrictions are Reasona
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marriage which imposes only reasona
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National Bank (1961), 87 Ohio Law A
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By exercising her power of appointm
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Max’s beneficiary restriction was
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adoption, in 1969, of the Statute C
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unaffected by the violation of the
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of this estate. In the absence of t
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We conclude, reading Ransdell, Shac
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7. Suppose Dr. Shapira’s will con
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8.3.1 Example Ross had three childr
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Discovery of the 1975 will and the
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Andrews, 125 Nev. 397, 406, 215 P.3
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planning unpredictable. In essence,
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provides: “If the decedent leaves
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child’s interests in the father
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majority of cases hold that under m
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West’s Alaska Statutes Annotated
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The statute also instructs that acq
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While we believe the court did not
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stirpes.’ Further, even if Margar
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This action began with a petition f
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The objectors argue that because Li
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Terry L. Armstrong, John’s brothe
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meaning of “wilfully,” finding
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he killed because an insane person
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5. From a public policy perspective
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Chapter Nine: Testamentary Capacity
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discounted his testimony. Instead,
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Under these circumstances, we agree
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contests the will has the burden of
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maintain the trial court erred in f
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executed. All other evidence concer
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he continued to love Valerie and mi
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the 2001 report, he would have cons
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with testator at rehabilitation hos
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half of $75,000 upon the death of h
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The policy of the law favors testac
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testimony supported the conclusion
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$200 to purchase clothes for hersel
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evidence to be highly probable. In
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slipping the wheatgrass on his sala
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Noblin v. Burgess, 54 So.3d 282 (Mi
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[An appellate court] resolves all c
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presence of Burgess and McDill, as
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physically intimate, and that at so
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matter. We cannot say that the chan
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10.2.2 Undue Influence If the presu
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II. Scope and Standards of Review.
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dominating influence over Clair in
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In re Estate of Rosasco, 31 Misc. 3
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A. There were plenty of instances w
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destroyed free agency, or which, by
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Duress: In the context of contested
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The motion for summary judgment wit
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cause of action against the third p
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intended to induce [Mr.] Schilling
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Does Florida law, statutory or othe
Page 494 and 495:
Class Discussion Tool (Answer this
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(a) Is written, created and stored
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Steve Godfrey (“Deceased”) prep
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Defendant made a properly supported
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who presided at the hearing and hea
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Later in the afternoon Fred and his
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position, that the witnesses are si
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testator’s death.” Kay purporte
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will was properly executed. Id. The
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Viewing this evidence in a light mo
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296, 297, which was a proceeding to
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void. In Fowler v. Stagner, supra,
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extent the subsequent will is incon
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For more than one hundred years, th
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2002. Elizabeth and Kelly are the b
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when they prepared their wills in 2
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execution, or its contents. Rather,
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secreted by some other person with
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As in Jackson and Bowery, it is dem
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Hurricane Katrina, a large number o
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LAW OF WILLS § 21.57 at 446 (rev.
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furniture in the house was left to
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intestate but held that “however
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evocation was based on her mistaken
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2. In 2001, Madison executed a will
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to treat this as a revocation is du
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Section 70 states: “If a person m
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Problems (1) If the testator had no
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It appears from the record that on
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The object of the statute is not to
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does the will contain anything indi
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Chapter Twelve: Non-Attested Wills
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when it appears thereby that the de
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signature, but part of an unfinishe
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emember the North Shore Animal Leag
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handwriting “ ‘is exceedingly d
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12.2.2 In the Testator’s Handwrit
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In Alexander’s Estate v. Hatcher,
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The right to make a will disposing
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I The facts—all of which are undi
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For example, in Estate of Baker, 59
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can come to no other conclusion wit
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5. Nellie and her sisters, Connie a
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I. Facts and Procedural History Thi
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eference into the Will. We reverse
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the completed form to his office pr
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(a) The Trustee shall pay the entir
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Even in those states in which such
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equest to ‘heirs’ or ‘childre
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wishes and intentions stated in the
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Fifth. It is clear that the judge f
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twenty to thirty minutes, during wh
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distinctly extraneous document, but
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Example: On March 4, 2014, T execut
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Explanation: T’s motivation for b
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at issue. 2 Page The Law of Wills s
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Lawson exerted undue influence on S
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embodiment of the Will Contract New
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Problems 1. Jason, a seventy year o
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to do necessary work about the plac
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The terms of the bequest exactly fi
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In the first paragraph she directed
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‘The decedent may have thought he
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correction? May the law not untie t
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testamentary intent?; and (2) Does
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Russell’s will gives Betty a life
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affiants, with the intent to act as
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supra, 63 Wash.U.L.Q. at 60; Nelson
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decedent had not seen or had any co
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een executed in compliance with N.J
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final assent to the document. Clear
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Affirmed. In re Estate of Sky Dance
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Although a will was not executed in
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Chapter Fifteen: The Stale Will Pro
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Example 3: In 2013, Freda left a wi
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alike, with the share going to Fran
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cousins were dead when testator exe
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At the outset, we are not persuaded
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The court has followed this rule in
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‘ITEM IV. My real estate located
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effect, (sic) when both description
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intended a half and half division o
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Personal to Chester H. Quinn & Roxy
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2d 199, 214, 238 P.2d 966, 975). Th
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131 P.2d 825; Parsons v. Bristol De
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3. Patent vs. latent ambiguity: Acc
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a brother, Giuseppe, and a sister,
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Early in 2006, Cal Jr. and his wife
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926, 280 P.3d 1110 (2012). Our prim
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esults from allowing the natural ob
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15.3.2.1 Language of the Will M.S.A
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antilapse statutes have been constr
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decedent”). Thus, although the pr
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antilapse statute, words of survivo
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(1997), the antilapse statute, gove
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generally provided that the propert
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testator left all her property to h
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15.4 Ademption The law considers a
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Sewell also obtained an appraisal o
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contravention of the power of attor
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the Fiduciaries [Sewell and Judkins
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thereby allowing the imposition of
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intentional interference with an in
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the testator’s lifetime, that gif
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him even a small sum with intent to
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
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The doctrine of exoneration has bee
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e paid by the Estate, the debt secu
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16.2.1 Changing the Beneficiary A l
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Accordingly, we affirm the order of
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his consent and without notice to h
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Egelhoff v. Egelhoff ex rel. Breine
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would survive,’ as well as to the
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een adopted by nearly every State-i
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
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and were included in the inventory
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een the property of the daughter up
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Moreover, the settlor may use a dee
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On final submission after evidence
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evidentiary material which has been
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that immediately thereafter the tru
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2. Arthur placed $100,000 worth of
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The co-executors and the trustee do
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not a will construction case, we ar
Page 746 and 747:
presently constituted does not effe
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2. Should the settlor be permitted
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