Law of Wills, 2016A

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law, viz., the meaning of the provision in question. (E.g., 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271, 32 Cal.Rptr.2d 807, 878 P.2d 566.) It survives scrutiny. The analysis set out above establishes the point. Petitioner argues to the contrary. At bottom, she relies on Stevenson. But Stevenson has been found wanting. She also relies on the comment, quoted above, that one of the legal barriers to adoption exists “where ... a parent of the” “foster child or stepchild” “refuses to consent to the adoption.” (Senate Committee on Judiciary Report, supra, Sen. J. (1983-1984 Reg. Sess.) p. 4882.) But that comment deals only with what such a barrier is, and not when it has to exist or how long it has to continue. In addition, she asserts that, in order to give the provision's “continuing relationship” and “legal barrier” requirements independent meaning, we should understand the former to be temporal but not causal and the latter to be causal but not temporal. We cannot do so. What is temporal need not be causal. But what is causal must be temporal: A cause exists only when it operates; it operates only when it is effective; it is effective only when it fills at least one moment in time. Even though we cannot understand the provision's requirements as urged, we can nevertheless give them independent meaning: The former assures that a relationship between the foster parent or stepparent and the foster child or stepchild lasted until death, and the latter assures that that relationship was tantamount to that of adoption. The Court of Appeal was also right as to the probate court's express finding that petitioner failed to establish by clear and convincing evidence that decedent would have adopted her but for a legal barrier. Such a finding is reviewed for substantial evidence: It resolves a mixed question of law and fact that is nonetheless predominantly one of fact, inasmuch as it “requires application of experience with human affairs....” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr. 139, 782 P.2d 278.) It survives scrutiny. Petitioner does not argue to the contrary. Under Probate Code section 6454, a legal barrier to adoption must have continued until death. But she admitted below that such a barrier did not perdure. She makes the same admission here. Lastly, we observe that, to the extent that the purpose of Probate Code section 6454 is to pass the estate of an intestate decedent in accordance with the “intent” that he “is most likely to have had” at the time of death, and to do so in an “efficient and expeditious” manner (Tent. Recommendation Relating to Wills and Intestate Succession, supra, 16 Cal. Law Revision Com. Rep., supra, at p. 2319), it appears to be satisfied in this case. As the probate court stated, “it is not an insignificant fact that,” in his old will, decedent “did not express any testamentary intent toward” petitioner “as a successor beneficiary should, as actually happened, his wife have predeceased him.” This fact, of course, is not proof. But it is all there is. And it is not challenged. IV For the reasons stated above, we conclude that we must affirm the judgment of the Court of Appeal. It is so ordered. CHIN, Associate Justice, dissenting. In this case, we must apply Probate Code section 6454, which provides in relevant part: “For the purpose of determining intestate succession by a person ... from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied: (a) The relationship began 235
during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent. (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.” The Courts of Appeal have disagreed as to the necessary duration of the “legal barrier” that the statute references. (§ 6454, subd. (b).) Construing section 6454's predecessor, the Sixth District held that the legal barrier had to exist only when adoption was attempted or contemplated. (Estate of Stevenson (1992) 11 Cal.App.4th 852, 865-866, 14 Cal.Rptr.2d 250 (Stevenson).) Construing the same statute, Division Five of the Second District expressly rejected Stevenson and held that the legal barrier must have existed throughout the lives of the child and the foster parent or stepparent. (Estate of Cleveland (1993) 17 Cal.App.4th 1700, 1709-1713, 22 Cal.Rptr.2d 590 (Cleveland ).) Essentially agreeing with Cleveland, the majority rewrites the statute so as to render it virtually inapplicable to adult foster children or stepchildren, who seldom (if ever) could demonstrate a lifetime legal barrier to adoption. This narrow construction is neither compelled by the words of the statute nor necessary to effectuate the Legislature's intent. On the contrary, Stevenson's interpretation, which has the express endorsement of the commission that drafted the statute for the Legislature, is both more logical and more consistent with the available indicia of legislative intent. Moreover, the advantages that the majority claims for its construction are largely illusory. Accordingly, I cannot join in the majority's restrictive revision of section 6454. Notes and Questions 1. What are the pros and cons of permitting stepchildren and foster children to inherit from stepparents and foster parents? 2. Should the Probate Court consider the relationship between the stepparent/foster parent and the stepchild/foster child? Should these children have to be adopted in order to obtain the right to inherit? 3. What, if any, restrictions should be place on the right of stepchildren/foster children to inherit under the intestacy system? 236
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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
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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
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 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
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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
Page 462 and 463:
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
Page 472 and 473:
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
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
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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
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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