Law of Wills, 2016A

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Law of Wills Browne C. Lewis Leon and Gloria Plevin Professor of Law and Director, Center for Health Law & Policy Cleveland-Marshall College of Law CALI eLangdell Press 2016
About the Author Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of Health Law & Policy at Cleveland-Marshall College of Law. Prior to joining the faculty at Cleveland- Marshall, Professor Lewis was an associate professor at the University of Detroit Mercy School of Law, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor at Seattle University School of Law and a legal writing instructor at Hamline University School of Law. Professor Lewis has also taught in the American Bar Association CLEO Summer Institute. Professor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the Hasting Center, and Yale University’s Interdisciplinary Center for Bioethics. As a Senior Fulbright Specialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel. Professor Lewis was also a Core Fulbright Scholar at King’s College in London, and a Robert Wood Johnson Public Health Law Scholar in Residence at the Cleveland Public Health Department. Professor Lewis writes in the areas of estate planning, probate and reproductive law. Her article on human oocyte cryopreservation was recently published in the Tennessee Law Review. In 2012, New York University Press published Professor Lewis’ book on paternity and artificial insemination. Professor Lewis has recently completed a book on posthumous reproduction for Routledge Press. i
Page 4 and 5: Notices This is the first edition o
Page 6 and 7: Table of Contents Law of Wills ....
Page 8 and 9: Problems and Questions ............
Page 10 and 11: Welch vs. Wilson, 516 S.E.2d 35 (W.
Page 12 and 13: Notes and Questions ...............
Page 14 and 15: Notes, Problems, and Questions ....
Page 16 and 17: 10.3.1 Fraud in the inducement ....
Page 18 and 19: 12.1 Introduction .................
Page 20 and 21: Matter of Kalouse’s Estate, 282 N
Page 22 and 23: Preface Both lay persons and buddin
Page 24 and 25: Part I - The Intestacy System Chapt
Page 26 and 27: meaning of the Canon, when it becom
Page 28 and 29: In January 1998, before the husband
Page 30 and 31: that part of his estate that otherw
Page 32 and 33: disclose. Ibid. In the context of e
Page 34 and 35: eveals to Lawyer that he has just e
Page 36 and 37: meet with Jake Leno and report back
Page 38 and 39: panel’s finding that his testimon
Page 40 and 41: witness, because the hearing panel
Page 42 and 43: incompetent by a court without both
Page 44 and 45: Whether, under New Hampshire law an
Page 46 and 47: uildings used in the family busines
Page 48 and 49: Creating a duty, even under the unf
Page 50 and 51: Chapter Two: Intestacy System (Basi
Page 52 and 53:
children for purposes of the distri
Page 54 and 55:
Lauren, a widow, had two children,
Page 56 and 57:
nominated himself as the sole perso
Page 58 and 59:
(1) to the issue of the decedent; i
Page 60 and 61:
stirpes,” “classic per stirpes,
Page 62 and 63:
E, will receive her 1/3 share of th
Page 64 and 65:
Scenario Two: Stephen dies intestat
Page 66 and 67:
Thomas A. Fleming was born out of w
Page 68 and 69:
In our view, the 1947 statutes coul
Page 70 and 71:
asked [R.W.] how long has he and hi
Page 72 and 73:
Following the fact finding hearing
Page 74 and 75:
eturned to M.W. She agreed to a psy
Page 76 and 77:
Dr. Dyer testified that in his opin
Page 78 and 79:
U.S. 971, 101 S.Ct. 2049, 68 L.Ed.
Page 80 and 81:
intestacy succession rules. Affirme
Page 82 and 83:
Explanation: Willis estate will be
Page 84 and 85:
Appeal dismissed, with costs to res
Page 86 and 87:
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 138 and 139:
3.4.4 Fractionalize Forced Share In
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
Page 188 and 189:
1983); Wilks v. Langley Adm’r, 45
Page 190 and 191:
transcript shows that the court was
Page 192 and 193:
egardless of age.” An order and j
Page 194 and 195:
parent-child relationship between p
Page 196 and 197:
N.E.2d 820, 822 (Ill. 1994). To det
Page 198 and 199:
of an adopted adult. Accordingly, w
Page 200 and 201:
arred because it is contrary to pub
Page 202 and 203:
construction.” Lang, 35 S.W.3d at
Page 204 and 205:
3. Ellison Sr. could have intended
Page 206 and 207:
occurred.” Id. Therefore, “[t]h
Page 208 and 209:
Acts of 1975, 64th Leg., R.S., ch.
Page 210 and 211:
the natural parents may not inherit
Page 212 and 213:
and seeking his own appointment as
Page 214 and 215:
was open and uncontested and becaus
Page 216 and 217:
170-B:1. The statute already consid
Page 218 and 219:
5.2 Non-Marital Children Most of th
Page 220 and 221:
In applying the Equal Protection Cl
Page 222 and 223:
“An illegitimate child is the leg
Page 224 and 225:
The New York statute, enacted in 18
Page 226 and 227:
during their fathers’ lifetimes,
Page 228 and 229:
Phillips v. Ledford, 590 S.E.2d 280
Page 230 and 231:
(citations omitted) a positive DNA
Page 232 and 233:
Class Discussion Tool LaMeesha had
Page 234 and 235:
The definition of “legitimate”
Page 236 and 237:
We fail to find the necessary State
Page 238 and 239:
Sample State Statutes West's Annota
Page 240 and 241:
legitimate from and through the chi
Page 242 and 243:
Notes and Questions 1. Evaluate the
Page 244 and 245:
I Thomas and Janet are the children
Page 246 and 247:
elationship of an adopted child and
Page 248 and 249:
‘Fifth. If the decedent leaves no
Page 250 and 251:
433, 26 A.L.R.2d 249,cited by appel
Page 252 and 253:
wrote his will. Although it is not
Page 254 and 255:
2460; see id. at p. 2460 [Cal. Law
Page 256 and 257:
foster parent] expressed a desire t
Page 258 and 259:
law, viz., the meaning of the provi
Page 260 and 261:
Chapter Six: Intestacy (Children of
Page 262 and 263:
6.2.1 The Right to Inherit From Fat
Page 264 and 265:
(c) Because the SSA’s interpretat
Page 266 and 267:
The wife presented the judgment of
Page 268 and 269:
Section 1 of the intestacy statute
Page 270 and 271:
See, e.g., L.W.K. v. E.R.C., supra
Page 272 and 273:
more complicated matter. In A.Z. v.
Page 274 and 275:
posthumously conceived child. In an
Page 276 and 277:
distribution statute. After a heari
Page 278 and 279:
(b) Taking against the will of any
Page 280 and 281:
has urged me not to adjudicate this
Page 282 and 283:
going back to at least 1877. The si
Page 284 and 285:
ear his children. Some may question
Page 286 and 287:
of Mr. Finley. The claims were deni
Page 288 and 289:
is left void, superfluous or insign
Page 290 and 291:
(James's issue, in the case of cert
Page 292 and 293:
In order for a post-conceived child
Page 294 and 295:
unless the deceased individual cons
Page 296 and 297:
Questions 1. Which one of the above
Page 298 and 299:
Mitch’s sperm to become pregnant.
Page 300 and 301:
Background Husband and Wife were ma
Page 302 and 303:
any other file, are subject to insp
Page 304 and 305:
husband will not hold them responsi
Page 306 and 307:
K.S. v. G.S., 440 A.2d 64 (N.J. Sup
Page 308 and 309:
In New Jersey, in order to sufficie
Page 310 and 311:
protect the best interests of the c
Page 312 and 313:
Turning to the specific issue befor
Page 314 and 315:
Husband argues implied consent to a
Page 316 and 317:
want to participate in, nor did he
Page 318 and 319:
structure of the statute does not l
Page 320 and 321:
6.5 The Paternity of the Sperm Dono
Page 322 and 323:
parent's constitutional right to pr
Page 324 and 325:
Greenwald, 743 A.2d 977, 979 (Pa.Su
Page 326 and 327:
Custody order affirmed. Support ord
Page 328 and 329:
a large family. Unfortunately, appr
Page 330 and 331:
The analysis and law in support of
Page 332 and 333:
mother under California law.” Joh
Page 334 and 335:
individual's genes. If we are to re
Page 336 and 337:
3. Should genetics be the sole indi
Page 338 and 339:
A bond is created between a gestati
Page 340 and 341:
8. Should there be a presumption th
Page 342 and 343:
Passage of the Act clearly was not
Page 344 and 345:
In deciding the issue of maternity
Page 346 and 347:
6.6.1.4 The Best Interests of the C
Page 348 and 349:
holding of the Court of Appeals tha
Page 350 and 351:
In anticipation of trial, Charles a
Page 352 and 353:
framework for our analysis. 2. The
Page 354 and 355:
contemplate or to control the circu
Page 356 and 357:
Johnson has “discarded both genet
Page 358 and 359:
in any event there is now a lack of
Page 360 and 361:
Instead we affirm on separate and n
Page 362 and 363:
Under California law, a judgment of
Page 364 and 365:
Part II —The Testacy System Chapt
Page 366 and 367:
But the end of future allotment by
Page 368 and 369:
action to encourage consolidation.
Page 370 and 371:
deceased, and others. To review a j
Page 372 and 373:
5. Suppose that Congress required r
Page 374 and 375:
It will not be questioned that marr
Page 376 and 377:
disowned as a member; or if she hav
Page 378 and 379:
7.2.2 Some Restrictions are Reasona
Page 380 and 381:
marriage which imposes only reasona
Page 382 and 383:
National Bank (1961), 87 Ohio Law A
Page 384 and 385:
By exercising her power of appointm
Page 386 and 387:
Max’s beneficiary restriction was
Page 388 and 389:
adoption, in 1969, of the Statute C
Page 390 and 391:
unaffected by the violation of the
Page 392 and 393:
of this estate. In the absence of t
Page 394 and 395:
We conclude, reading Ransdell, Shac
Page 396 and 397:
7. Suppose Dr. Shapira’s will con
Page 398 and 399:
8.3.1 Example Ross had three childr
Page 400 and 401:
Discovery of the 1975 will and the
Page 402 and 403:
Andrews, 125 Nev. 397, 406, 215 P.3
Page 404 and 405:
planning unpredictable. In essence,
Page 406 and 407:
provides: “If the decedent leaves
Page 408 and 409:
child’s interests in the father
Page 410 and 411:
majority of cases hold that under m
Page 412 and 413:
West’s Alaska Statutes Annotated
Page 414 and 415:
The statute also instructs that acq
Page 416 and 417:
While we believe the court did not
Page 418 and 419:
stirpes.’ Further, even if Margar
Page 420 and 421:
This action began with a petition f
Page 422 and 423:
The objectors argue that because Li
Page 424 and 425:
Terry L. Armstrong, John’s brothe
Page 426 and 427:
meaning of “wilfully,” finding
Page 428 and 429:
he killed because an insane person
Page 430 and 431:
5. From a public policy perspective
Page 432 and 433:
Chapter Nine: Testamentary Capacity
Page 434 and 435:
discounted his testimony. Instead,
Page 436 and 437:
Under these circumstances, we agree
Page 438 and 439:
contests the will has the burden of
Page 440 and 441:
maintain the trial court erred in f
Page 442 and 443:
executed. All other evidence concer
Page 444 and 445:
he continued to love Valerie and mi
Page 446 and 447:
the 2001 report, he would have cons
Page 448 and 449:
with testator at rehabilitation hos
Page 450 and 451:
half of $75,000 upon the death of h
Page 452 and 453:
The policy of the law favors testac
Page 454 and 455:
testimony supported the conclusion
Page 456 and 457:
$200 to purchase clothes for hersel
Page 458 and 459:
evidence to be highly probable. In
Page 460 and 461:
slipping the wheatgrass on his sala
Page 462 and 463:
Noblin v. Burgess, 54 So.3d 282 (Mi
Page 464 and 465:
[An appellate court] resolves all c
Page 466 and 467:
presence of Burgess and McDill, as
Page 468 and 469:
physically intimate, and that at so
Page 470 and 471:
matter. We cannot say that the chan
Page 472 and 473:
10.2.2 Undue Influence If the presu
Page 474 and 475:
II. Scope and Standards of Review.
Page 476 and 477:
dominating influence over Clair in
Page 478 and 479:
In re Estate of Rosasco, 31 Misc. 3
Page 480 and 481:
A. There were plenty of instances w
Page 482 and 483:
destroyed free agency, or which, by
Page 484 and 485:
Duress: In the context of contested
Page 486 and 487:
The motion for summary judgment wit
Page 488 and 489:
cause of action against the third p
Page 490 and 491:
intended to induce [Mr.] Schilling
Page 492 and 493:
Does Florida law, statutory or othe
Page 494 and 495:
Class Discussion Tool (Answer this
Page 496 and 497:
(a) Is written, created and stored
Page 498 and 499:
Steve Godfrey (“Deceased”) prep
Page 500 and 501:
Defendant made a properly supported
Page 502 and 503:
who presided at the hearing and hea
Page 504 and 505:
Later in the afternoon Fred and his
Page 506 and 507:
position, that the witnesses are si
Page 508 and 509:
testator’s death.” Kay purporte
Page 510 and 511:
will was properly executed. Id. The
Page 512 and 513:
Viewing this evidence in a light mo
Page 514 and 515:
296, 297, which was a proceeding to
Page 516 and 517:
void. In Fowler v. Stagner, supra,
Page 518 and 519:
extent the subsequent will is incon
Page 520 and 521:
For more than one hundred years, th
Page 522 and 523:
2002. Elizabeth and Kelly are the b
Page 524 and 525:
when they prepared their wills in 2
Page 526 and 527:
execution, or its contents. Rather,
Page 528 and 529:
secreted by some other person with
Page 530 and 531:
As in Jackson and Bowery, it is dem
Page 532 and 533:
Hurricane Katrina, a large number o
Page 534 and 535:
LAW OF WILLS § 21.57 at 446 (rev.
Page 536 and 537:
furniture in the house was left to
Page 538 and 539:
intestate but held that “however
Page 540 and 541:
evocation was based on her mistaken
Page 542 and 543:
2. In 2001, Madison executed a will
Page 544 and 545:
to treat this as a revocation is du
Page 546 and 547:
Section 70 states: “If a person m
Page 548 and 549:
Problems (1) If the testator had no
Page 550 and 551:
It appears from the record that on
Page 552 and 553:
The object of the statute is not to
Page 554 and 555:
does the will contain anything indi
Page 556 and 557:
Chapter Twelve: Non-Attested Wills
Page 558 and 559:
when it appears thereby that the de
Page 560 and 561:
signature, but part of an unfinishe
Page 562 and 563:
emember the North Shore Animal Leag
Page 564 and 565:
handwriting “ ‘is exceedingly d
Page 566 and 567:
12.2.2 In the Testator’s Handwrit
Page 568 and 569:
In Alexander’s Estate v. Hatcher,
Page 570 and 571:
The right to make a will disposing
Page 572 and 573:
I The facts—all of which are undi
Page 574 and 575:
For example, in Estate of Baker, 59
Page 576 and 577:
can come to no other conclusion wit
Page 578 and 579:
5. Nellie and her sisters, Connie a
Page 580 and 581:
I. Facts and Procedural History Thi
Page 582 and 583:
eference into the Will. We reverse
Page 584 and 585:
the completed form to his office pr
Page 586 and 587:
(a) The Trustee shall pay the entir
Page 588 and 589:
Even in those states in which such
Page 590 and 591:
equest to ‘heirs’ or ‘childre
Page 592 and 593:
wishes and intentions stated in the
Page 594 and 595:
Fifth. It is clear that the judge f
Page 596 and 597:
twenty to thirty minutes, during wh
Page 598 and 599:
distinctly extraneous document, but
Page 600 and 601:
Example: On March 4, 2014, T execut
Page 602 and 603:
Explanation: T’s motivation for b
Page 604 and 605:
at issue. 2 Page The Law of Wills s
Page 606 and 607:
Lawson exerted undue influence on S
Page 608 and 609:
embodiment of the Will Contract New
Page 610 and 611:
Problems 1. Jason, a seventy year o
Page 612 and 613:
to do necessary work about the plac
Page 614 and 615:
The terms of the bequest exactly fi
Page 616 and 617:
In the first paragraph she directed
Page 618 and 619:
‘The decedent may have thought he
Page 620 and 621:
correction? May the law not untie t
Page 622 and 623:
testamentary intent?; and (2) Does
Page 624 and 625:
Russell’s will gives Betty a life
Page 626 and 627:
affiants, with the intent to act as
Page 628 and 629:
supra, 63 Wash.U.L.Q. at 60; Nelson
Page 630 and 631:
decedent had not seen or had any co
Page 632 and 633:
een executed in compliance with N.J
Page 634 and 635:
final assent to the document. Clear
Page 636 and 637:
Affirmed. In re Estate of Sky Dance
Page 638 and 639:
Although a will was not executed in
Page 640 and 641:
Chapter Fifteen: The Stale Will Pro
Page 642 and 643:
Example 3: In 2013, Freda left a wi
Page 644 and 645:
alike, with the share going to Fran
Page 646 and 647:
cousins were dead when testator exe
Page 648 and 649:
At the outset, we are not persuaded
Page 650 and 651:
The court has followed this rule in
Page 652 and 653:
‘ITEM IV. My real estate located
Page 654 and 655:
effect, (sic) when both description
Page 656 and 657:
intended a half and half division o
Page 658 and 659:
Personal to Chester H. Quinn & Roxy
Page 660 and 661:
2d 199, 214, 238 P.2d 966, 975). Th
Page 662 and 663:
131 P.2d 825; Parsons v. Bristol De
Page 664 and 665:
3. Patent vs. latent ambiguity: Acc
Page 666 and 667:
a brother, Giuseppe, and a sister,
Page 668 and 669:
Early in 2006, Cal Jr. and his wife
Page 670 and 671:
926, 280 P.3d 1110 (2012). Our prim
Page 672 and 673:
esults from allowing the natural ob
Page 674 and 675:
15.3.2.1 Language of the Will M.S.A
Page 676 and 677:
antilapse statutes have been constr
Page 678 and 679:
decedent”). Thus, although the pr
Page 680 and 681:
antilapse statute, words of survivo
Page 682 and 683:
(1997), the antilapse statute, gove
Page 684 and 685:
generally provided that the propert
Page 686 and 687:
testator left all her property to h
Page 688 and 689:
15.4 Ademption The law considers a
Page 690 and 691:
Sewell also obtained an appraisal o
Page 692 and 693:
contravention of the power of attor
Page 694 and 695:
the Fiduciaries [Sewell and Judkins
Page 696 and 697:
thereby allowing the imposition of
Page 698 and 699:
intentional interference with an in
Page 700 and 701:
the testator’s lifetime, that gif
Page 702 and 703:
him even a small sum with intent to
Page 704 and 705:
(c) If the devisee fails to survive
Page 706 and 707:
When this lawsuit was filed, approx
Page 708 and 709:
The doctrine of exoneration has bee
Page 710 and 711:
e paid by the Estate, the debt secu
Page 712 and 713:
16.2.1 Changing the Beneficiary A l
Page 714 and 715:
Accordingly, we affirm the order of
Page 716 and 717:
his consent and without notice to h
Page 718 and 719:
Egelhoff v. Egelhoff ex rel. Breine
Page 720 and 721:
would survive,’ as well as to the
Page 722 and 723:
een adopted by nearly every State-i
Page 724 and 725:
Motor Co., 529 U.S. 861, 873, 120 S
Page 726 and 727:
purpose with federalism’s need to
Page 728 and 729:
and were included in the inventory
Page 730 and 731:
een the property of the daughter up
Page 732 and 733:
Moreover, the settlor may use a dee
Page 734 and 735:
On final submission after evidence
Page 736 and 737:
evidentiary material which has been
Page 738 and 739:
that immediately thereafter the tru
Page 740 and 741:
2. Arthur placed $100,000 worth of
Page 742 and 743:
The co-executors and the trustee do
Page 744 and 745:
not a will construction case, we ar
Page 746 and 747:
presently constituted does not effe
Page 748:
2. Should the settlor be permitted
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