Law of Wills, 2016A

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Preface Both lay persons and budding lawyers continue to be interested in the area of estates and trusts. While I was writing this book, several celebrities died. Certain deaths really attracted the attention of the public. Facebook and other social media sites were full of dedications to Prince when his death was announced. Robin Williams spent his life making us laugh; the tragic circumstances of his death made us sad. After all of the tears, memorials and speculations ceased, people started searching the Internet for copies of the wills. They were interested in the worth of the various estates and the manner in which those estates would be distributed. They were shocked when Prince died without leaving a will. They watched legal experts go on television to explain the consequences of Prince’s failure to execute a will. At times, the media coverage was like watching the introduction to a Wills & Trusts class. Prince died a single man with no children. He was survived by several whole-blood and half-blood siblings. There were even persons coming forth claiming to be his non-marital children. When cases like this occur, people realize that estate planning and probate law are still interesting and relevant. The purpose of this casebook is to train the students to think and act like estate planning attorneys. This book is meant to be used in conjunction with a book on the law of trusts. The focus of the book is problem-solving and legal application. The book includes numerous problems, so the students can learn to apply the law they learn from reading the cases. It also contains collaborative learning exercises to encourage students to engage in group problem-solving. This book contains less policy than traditional casebooks in the area. Instead the book contains numerous problems that will enable the students to understand and apply the black letter law. The book is divided into three parts to reflect the main types of issues that students will encounter if they practice elder or estate planning law. The order of the book mirrors the manner in which estate planning law is practiced in the real world. The book starts with an examination of the intestacy system because the majority of people die without executing a will. Therefore, most of the legal issues an estate planning lawyer faces center around the intestacy system. Unlike the typical wills casebook, this book provides a detailed discussion of the intestacy system. A chapter on ethics is included because estate planning attorneys encounter ethical issues that are different from persons practicing in other areas of law. The second part of the book includes an exploration of the testacy system. It is arranged so professors can lead students from the client interview to the will execution. The first three chapters of this section deal with issues that directly impact the existence of the inheritance system. It analyzes a person’s ability to control the disposition of his or her property after death. This serves as the students’ first introduction to the power of the “dead hand”. These chapters are included to start a public policy discussion about the rights of the dead, the right of heirs, and the necessity of an inheritance system. I tell my students that, when executing a will, they must think of the ways that it can be contested. In addition, I tell them that a will can be contested on two fronts-an attack on the testator and an attack on the will. Two chapters in this part highlight the various ways that someone might question the testator’s ability to execute a valid will. The final chapters in this unit show the issues that can be raised to dispute the validity of the will. They also explain the different types of wills that are available. The final part of the book deals with non-probate transfers. These chapters are included to show students the other devises that people can use to dispose of their property. That knowledge is important because a significant xx
number of people use these devices to transfer their property. For example, at the end of the semester, my students have to draft a will based upon a fact pattern that I give them. I intentionally include non-probate property in order to see if they will attempt to distribute that using the will. Most of the litigation that occurs in the estates and trusts area center around family disputes. Consequently, the book devotes a significant amount of time analyzing family dynamics. To that end, the book discusses the ways in which families are legally formed. xxi
Page 2 and 3: Law of Wills Browne C. Lewis Leon a
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 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
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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
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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
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Case law in Mississippi is also cle
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Conclusion Based on the foregoing r
Page 170 and 171:
Page was without authority to contr
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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
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This equitable principle of law has
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equitably adoptive parent's brother
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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
Page 200 and 201:
arred because it is contrary to pub
Page 202 and 203:
construction.” Lang, 35 S.W.3d at
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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
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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
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during their fathers’ lifetimes,
Page 228 and 229:
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
Page 234 and 235:
The definition of “legitimate”
Page 236 and 237:
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
Page 250 and 251:
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
Page 256 and 257:
foster parent] expressed a desire t
Page 258 and 259:
law, viz., the meaning of the provi
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Chapter Six: Intestacy (Children of
Page 262 and 263:
6.2.1 The Right to Inherit From Fat
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(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
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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.
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
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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
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But the end of future allotment by
Page 368 and 369:
action to encourage consolidation.
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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
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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
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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
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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
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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
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can come to no other conclusion wit
Page 578 and 579:
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
Page 584 and 585:
the completed form to his office pr
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(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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