Law of Wills, 2016A

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‘Fifth. If the decedent leaves no husband or wife the estate goes in equal shares to his children, and to the issue of any deceased child, by right of representation. ‘The words ‘issue,’ ‘child’ and ‘children’ wherever used in this section shall be construed to include lawfully adopted children.' RCW 11.04.030(3) provides: ‘The residue, if any, of the personal estate shall be distributed among the same persons as would be entitled to the real estate by RCW 11.04.020, and in the same proportion as provided, excepting as herein further provided; * * *.’ A child is the son or daughter, in relation to the father or mother. A stepchild is the son or daughter of one's wife by a former husband, or of one's husband by a former wife. The court found that there was no evidence of the decedent having lawfully adopted Adele Benson or Virginia McAllister Smith. Stepchildren are not included in the terms of the last paragraph of RCW 11.04.020 by implication. The status of stepchildren was considered by the legislature in a separate section. RCW 11.08.010 provides for inheritance from a stepparent in order to avoid escheat of the property to the state. The right of a stepchild to inherit from a stepparent is limited to the circumstances outlined therein. Appellants contend that the legislature eliminated any distinction between kindred of the half blood and of the whole blood when it enacted RCW 11.04.100. ‘The degree of kindred shall be computed according to the rules of the civil law, and the kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift from one of his ancestors, or kindred of such ancestor's blood, in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance. The words ‘kindred of such ancestor's blood’ and ‘blood of such ancestors' shall be construed to include any child lawfully adopted by one who is in fact of the blood of such ancestor.’ In State v. Bielman, 86 Wash. 460, 150 P. 1194, 1195, the defendant was charged with the crime of incest with his stepdaughter, in violation of § 2455, Rem. & Bal. Code, which provided: We said: ‘Whenever any male and female persons, nearer of kin to each other than second cousins, computing by the rules of the civil law, whether of the half or the whole blood, shall have sexual intercourse together, both shall be guilty of incest * * *.” ‘It is contended by the appellant that this statute refers only to persons who are blood relations nearer of kin to each other than second cousins, computing by the rule of the civil law. We think this contention must be sustained. The ordinary meaning of the word ‘kin’ is ‘a blood relation.’ See ‘Kin,’ 2 Words & Phrases, Second Series, p. 1306 [23 Words & Phrases, Perm. Ed., p. 546]. Warvelle, Real Property (3d ed.), § 168. The phrase ‘whether of the half or the whole blood,’ used in section 2455, indicates quite clearly that the section 225
efers only to kindred of the blood, and not kindred by affinity. We are of the opinion, therefore, that this section does not apply.' In In re Field, 182 App.Div. 266, 169 N.Y.S. 677, 681, the question was whether four stepchildren were entitled to share in their deceased stepmother's estate under the laws of descent and distribution. The court excluded the stepchildren, saying: ‘There is no question presented in this case, therefore, of the half blood, because the four children of her husband, John Stilwell, by his first wife, had none of her blood in their veins, and she was the stock. If one of her children had died intestate, then his share would have descended to each of his four half brothers and sisters and his two whole sisters, because, as to them, he would have been the ancestor, and all would have been of the blood of their common father, John Stilwell. But that situation is not presented.’ In re Estate of Paus, 324 Ill.App. 58, 57 N.E.2d 212, 213, involved a petition by the children of a sister of decedent's predeceased stepfather that they be declared heirs and next of kin of decedent. Their claim was based on a statute which provided: ‘In no case is there any distinction between the kindred of the whole and the half blood.” S.H.A.Ill. ch. 3, § 162. The court said: ‘We find nothing in the statute to justify the construction contended for. Five paragraphs of the statute designate persons who shall take by descent from a deceased person. The provision that distinction ‘in no case’ shall be made between the whole and half blood does not create another class of persons who will take but forbids distinction between the whole and half blood in the case of the persons named who are to take. The rule of the feudal law excluded from the inheritance descendants who were of the half blood. The rule never found favor in this country. The statute therefore expressly repeals that rule. This comes far short of creating another class of persons who are to take and who are not of the blood of the deceased at all. Petitioners' contention is without merit. They have no standing to make their claim. There is a fundamental distinction between persons who are of the half blood and those without inheritable blood at all.'(Italics ours.) The ‘kindred’ mentioned in RCW 11.04.100, whether of the half blood or of the whole blood, are kindred of the intestate. The meaning of the word ‘kin’ is a blood relation. As between a stepchild and a stepparent there is no blood relationship, but only that designated as affinity, the relationship which one spouse, because of marriage, has to blood relatives of the other. Here there was no blood relationship at all between Ernest E. Smith and his two stepdaughters. RCW 11.04.100 is not applicable to the facts in the case at bar. It prohibits distinction between kindred of the whole blood and of the half blood who are entitled to inherit under the statutes of descent and distribution. The only applicable statutes are RCW 11.04.020 (Fifth), and RCW 11.04.030(3). The stepdaughters were not decedent's children. He left no children. His only heir-atlaw is the respondent, the issue of his deceased child. In re Sheard's Estate, 181 Wash. 62, 42 P.2d 34, and In re Bordeaux' Estate, 37 Wash.2d 561, 225 P.2d 226
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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
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Chapter Three: Intestacy System (Su
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5. In America, there are variations
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On February 6, 1981, Leslie died in
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property to Edith. By such action,
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eversed the separate property deter
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legislative direction to the contra
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V. Virtually every court which has
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Joan last saw Charles in the New Yo
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Helen’s petition came on for a no
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valid, the court shall declare such
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their claim to an interest in the e
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In Estate of Ricci (1962) 201 Cal.A
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which were hers by separate ownersh
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Laikola v. Engineered Concrete, 277
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the party alleging a common-law mar
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3.2.3 Same-Sex Spouse Under the int
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There is no question that Frances
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Bell Joyner (collectively “defend
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2. What was the constructive abando
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on New York Evidence, Section 956,
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each will, Vencie and Melba gave
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days. These provisions constitute a
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Determination of Death 30 (1982), t
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We next address the question of whe
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3.4.3 Dower Ohio Revised Code Ann.
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3.4.4 Fractionalize Forced Share In
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If the decedent and the surviving s
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The effect of the parties’ disagr
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or model act. However, when the leg
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“how the [elective-share] amount
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allowance be deducted twice as a pa
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Thus, as the estate and the trial c
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M. Morrow, another first cousin, wa
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few other states allow the adopted
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II. Constitutionality Child next ar
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“If, for purposes of intestate su
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2. Sylvia R. Fore married George Cl
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Fred Wulf died intestate April 30,
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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
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Page was without authority to contr
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Moreover, the purpose of requiring
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probate records of Mrs. Margaret Wi
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Right to inherit from biological pa
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After the natural father in Halterm
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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
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 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
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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
Page 452 and 453:
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
Page 478 and 479:
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
Page 484 and 485:
Duress: In the context of contested
Page 486 and 487:
The motion for summary judgment wit
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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
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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
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Viewing this evidence in a light mo
Page 514 and 515:
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
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
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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
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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
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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
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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
Page 606 and 607:
Lawson exerted undue influence on S
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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
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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
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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
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
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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
Page 658 and 659:
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
Page 680 and 681:
antilapse statute, words of survivo
Page 682 and 683:
(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
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
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
Page 708 and 709:
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
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
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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
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
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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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