Law of Wills, 2016A

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Custody order affirmed. Support order vacated and case remanded with instructions. Jurisdiction is relinquished. Sample Statutes Ga. Code Ann., § 53-2-5 Rights of inheritance of and from individual conceived by artificial insemination An individual conceived by artificial insemination and presumed legitimate in accordance with Code Section 19-7-21 shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents, and the parents and relatives of the parents shall likewise be entitled to inherit as heirs from and through such individual. C.G.S.A. § 45a-777 (Connecticut)Inheritance by child conceived as a result of A.I.D (a) A child born as a result of A.I.D. may inherit the estate of his mother and her consenting spouse or their relatives as though he were the natural child of the mother and consenting spouse and he shall not inherit the estate from his natural father or his relatives. (b) The mother and her consenting husband or their relatives may inherit the estate of a child born as a result of A.I.D., if the child dies intestate, and the natural father or his relatives shall not inherit from him. C.G.S.A. § 45a-778 (Connecticut)Words of inheritance to apply to child conceived through A.I.D (a) The words "child", "children", "issue", "descendant", "descendants", "heir", "heirs", "unlawful heirs", "grandchild" and "grandchildren", when used in any will or trust instrument, shall, unless the document clearly indicates a contrary intention, include children born as a result of A.I.D. A.C.A. § 28-9-209 (Arkansas) Children as legitimate (c) Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. Class Discussion Tools 1. Pedro and Sandra got married. Afterwards Pedro decided that he did not want to have children, so he had a vasectomy performed on him. Sandra threatened to file for divorce if Pedro did not agree to help her have a child. Pedro admitted to Sandra that he did not want children because he was afraid that any child he conceived would inherit his genetic disorder. To keep the peace, Pedro accompanied Sandra to the fertility clinic. Pedro helped select a sperm donor that had features similar to his. In preparation for the pregnancy, Sandra quit her job. Pedro drove Sandra to all of her medical appointments before and after the conception of the child. After the child was born, Pedro realized that he did not want to raise another man’s child. He shared his concerns with 303
Sandra. As a consequence, Sandra filed for divorce. While the divorce was pending, Pedro was killed in a car accident. If Pedro died intestate in the state of Connecticut, would the child be eligible to inherit from his estate? What would be the result if Pedro died in the state of Arkansas? 2. Paul and his wife Maggie decided that they wanted to conceive a child using artificial insemination. Paul’s sperm count was low, so they had to use donor sperm. They went to the New Love Fertility Clinic. Paul wrote a $5,000 check to the fertility clinic from his checking account. In the memorandum section of the check, Paul wrote, “to finance the creation of a child I will raise with my wife, Maggie.” Maggie started receiving treatment a few days after the clinic cashed Paul’s check. Prior to the conception of a child, Paul and Maggie had a fight. In response, Paul sent Maggie a text message stating that he no longer wanted to raise a child with her. It is unclear whether or not Maggie received the message. Nonetheless, Maggie continued treatments and conceived a child through the use of artificial insemination. Paul does not want to take any responsibility for the child. If the jurisdiction has the following statute, is Paul the legal father of the child? “A man who provides sperm for, or consents to, assisted reproduction by a woman with the intent to be the parent of her child, is a parent of the resulting child.” 6.6 Children Conceived Through Surrogacy Arrangements In the previous two sections of this chapter, the focus has been on paternity. This section is unique in that it tackles the issue of the legal status of the women involved in a surrogacy arrangement. The cases presented in this section deal with the right of a child created as the result of a surrogacy arrangement to inherit from his or her mother. As previously indicated, the child’s right to inherit is determined by the existence of a parent-child relationship. In the case of children conceived as a result of surrogate agreements, the inheritance rights of those children is based upon the recognition of the mother-child relationship. The main issue becomes: Who is the legal mother of a child resulting from a surrogacy arrangement—the surrogate or the contracting woman. 6.6.1 The Possibility of Inheriting From the Woman In order for a child created as the result of a surrogacy arrangement to have the opportunity to inherit from a woman, that woman must be deemed to be the child’s legal mother. In some cases, that woman may be the woman acting as the surrogate. In other cases, that woman may be the woman who contracted to have the child created. Courts have adopted several different tests to determine the identity of the legal mother of a child conceived as the result of a surrogacy arrangement. These tests are illustrated in the next few cases. 6.6.1.1 The Genetics/Blood Test Belsito v. Clark, et al., 644 N.E. 2d 760 (C.P. Ct. Oh. 1994) SPICER, Judge. Findings of Fact Plaintiffs, Anthony and Shelly Belsito, were married September 26, 1992. They decided they wanted 304
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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
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Acts of 1975, 64th Leg., R.S., ch.
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the natural parents may not inherit
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and seeking his own appointment as
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was open and uncontested and becaus
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170-B:1. The statute already consid
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5.2 Non-Marital Children Most of th
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In applying the Equal Protection Cl
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“An illegitimate child is the leg
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The New York statute, enacted in 18
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during their fathers’ lifetimes,
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Phillips v. Ledford, 590 S.E.2d 280
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(citations omitted) a positive DNA
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Class Discussion Tool LaMeesha had
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The definition of “legitimate”
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We fail to find the necessary State
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Sample State Statutes West's Annota
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legitimate from and through the chi
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Notes and Questions 1. Evaluate the
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I Thomas and Janet are the children
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elationship of an adopted child and
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‘Fifth. If the decedent leaves no
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433, 26 A.L.R.2d 249,cited by appel
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wrote his will. Although it is not
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2460; see id. at p. 2460 [Cal. Law
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foster parent] expressed a desire t
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law, viz., the meaning of the provi
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Chapter Six: Intestacy (Children of
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6.2.1 The Right to Inherit From Fat
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(c) Because the SSA’s interpretat
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The wife presented the judgment of
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Section 1 of the intestacy statute
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See, e.g., L.W.K. v. E.R.C., supra
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more complicated matter. In A.Z. v.
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posthumously conceived child. In an
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
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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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Page 300 and 301: Background Husband and Wife were ma
Page 302 and 303: any other file, are subject to insp
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Page 306 and 307: K.S. v. G.S., 440 A.2d 64 (N.J. Sup
Page 308 and 309: In New Jersey, in order to sufficie
Page 310 and 311: protect the best interests of the c
Page 312 and 313: Turning to the specific issue befor
Page 314 and 315: Husband argues implied consent to a
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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 328 and 329: a large family. Unfortunately, appr
Page 330 and 331: The analysis and law in support of
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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
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Page 358 and 359: in any event there is now a lack of
Page 360 and 361: Instead we affirm on separate and n
Page 362 and 363: Under California law, a judgment of
Page 364 and 365: Part II —The Testacy System Chapt
Page 366 and 367: But the end of future allotment by
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Page 370 and 371: deceased, and others. To review a j
Page 372 and 373: 5. Suppose that Congress required r
Page 374 and 375: It will not be questioned that marr
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disowned as a member; or if she hav
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7.2.2 Some Restrictions are Reasona
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marriage which imposes only reasona
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National Bank (1961), 87 Ohio Law A
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By exercising her power of appointm
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Max’s beneficiary restriction was
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adoption, in 1969, of the Statute C
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unaffected by the violation of the
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of this estate. In the absence of t
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We conclude, reading Ransdell, Shac
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7. Suppose Dr. Shapira’s will con
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8.3.1 Example Ross had three childr
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Discovery of the 1975 will and the
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Andrews, 125 Nev. 397, 406, 215 P.3
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planning unpredictable. In essence,
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provides: “If the decedent leaves
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child’s interests in the father
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majority of cases hold that under m
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West’s Alaska Statutes Annotated
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The statute also instructs that acq
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While we believe the court did not
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stirpes.’ Further, even if Margar
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This action began with a petition f
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The objectors argue that because Li
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Terry L. Armstrong, John’s brothe
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meaning of “wilfully,” finding
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he killed because an insane person
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5. From a public policy perspective
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Chapter Nine: Testamentary Capacity
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discounted his testimony. Instead,
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Under these circumstances, we agree
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contests the will has the burden of
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maintain the trial court erred in f
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executed. All other evidence concer
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he continued to love Valerie and mi
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the 2001 report, he would have cons
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with testator at rehabilitation hos
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half of $75,000 upon the death of h
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The policy of the law favors testac
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testimony supported the conclusion
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$200 to purchase clothes for hersel
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evidence to be highly probable. In
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slipping the wheatgrass on his sala
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Noblin v. Burgess, 54 So.3d 282 (Mi
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[An appellate court] resolves all c
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presence of Burgess and McDill, as
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physically intimate, and that at so
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matter. We cannot say that the chan
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10.2.2 Undue Influence If the presu
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II. Scope and Standards of Review.
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dominating influence over Clair in
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In re Estate of Rosasco, 31 Misc. 3
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A. There were plenty of instances w
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destroyed free agency, or which, by
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Duress: In the context of contested
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The motion for summary judgment wit
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cause of action against the third p
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intended to induce [Mr.] Schilling
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Does Florida law, statutory or othe
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Class Discussion Tool (Answer this
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(a) Is written, created and stored
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Steve Godfrey (“Deceased”) prep
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Defendant made a properly supported
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who presided at the hearing and hea
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Later in the afternoon Fred and his
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position, that the witnesses are si
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testator’s death.” Kay purporte
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will was properly executed. Id. The
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Viewing this evidence in a light mo
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296, 297, which was a proceeding to
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void. In Fowler v. Stagner, supra,
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extent the subsequent will is incon
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For more than one hundred years, th
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2002. Elizabeth and Kelly are the b
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when they prepared their wills in 2
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execution, or its contents. Rather,
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secreted by some other person with
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As in Jackson and Bowery, it is dem
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Hurricane Katrina, a large number o
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LAW OF WILLS § 21.57 at 446 (rev.
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furniture in the house was left to
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intestate but held that “however
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evocation was based on her mistaken
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2. In 2001, Madison executed a will
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to treat this as a revocation is du
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Section 70 states: “If a person m
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Problems (1) If the testator had no
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It appears from the record that on
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The object of the statute is not to
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does the will contain anything indi
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Chapter Twelve: Non-Attested Wills
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when it appears thereby that the de
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signature, but part of an unfinishe
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emember the North Shore Animal Leag
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handwriting “ ‘is exceedingly d
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12.2.2 In the Testator’s Handwrit
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In Alexander’s Estate v. Hatcher,
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The right to make a will disposing
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I The facts—all of which are undi
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For example, in Estate of Baker, 59
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can come to no other conclusion wit
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5. Nellie and her sisters, Connie a
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I. Facts and Procedural History Thi
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eference into the Will. We reverse
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the completed form to his office pr
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(a) The Trustee shall pay the entir
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Even in those states in which such
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equest to ‘heirs’ or ‘childre
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wishes and intentions stated in the
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Fifth. It is clear that the judge f
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twenty to thirty minutes, during wh
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distinctly extraneous document, but
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Example: On March 4, 2014, T execut
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Explanation: T’s motivation for b
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at issue. 2 Page The Law of Wills s
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Lawson exerted undue influence on S
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embodiment of the Will Contract New
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Problems 1. Jason, a seventy year o
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to do necessary work about the plac
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The terms of the bequest exactly fi
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In the first paragraph she directed
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‘The decedent may have thought he
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correction? May the law not untie t
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testamentary intent?; and (2) Does
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Russell’s will gives Betty a life
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affiants, with the intent to act as
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supra, 63 Wash.U.L.Q. at 60; Nelson
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decedent had not seen or had any co
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een executed in compliance with N.J
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final assent to the document. Clear
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Affirmed. In re Estate of Sky Dance
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Although a will was not executed in
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Chapter Fifteen: The Stale Will Pro
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Example 3: In 2013, Freda left a wi
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alike, with the share going to Fran
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cousins were dead when testator exe
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At the outset, we are not persuaded
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The court has followed this rule in
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‘ITEM IV. My real estate located
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effect, (sic) when both description
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intended a half and half division o
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Personal to Chester H. Quinn & Roxy
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2d 199, 214, 238 P.2d 966, 975). Th
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131 P.2d 825; Parsons v. Bristol De
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3. Patent vs. latent ambiguity: Acc
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a brother, Giuseppe, and a sister,
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Early in 2006, Cal Jr. and his wife
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926, 280 P.3d 1110 (2012). Our prim
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esults from allowing the natural ob
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15.3.2.1 Language of the Will M.S.A
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antilapse statutes have been constr
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decedent”). Thus, although the pr
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antilapse statute, words of survivo
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(1997), the antilapse statute, gove
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generally provided that the propert
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testator left all her property to h
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15.4 Ademption The law considers a
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Sewell also obtained an appraisal o
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contravention of the power of attor
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the Fiduciaries [Sewell and Judkins
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thereby allowing the imposition of
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intentional interference with an in
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the testator’s lifetime, that gif
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him even a small sum with intent to
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
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The doctrine of exoneration has bee
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e paid by the Estate, the debt secu
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16.2.1 Changing the Beneficiary A l
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Accordingly, we affirm the order of
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his consent and without notice to h
Page 718 and 719:
Egelhoff v. Egelhoff ex rel. Breine
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would survive,’ as well as to the
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een adopted by nearly every State-i
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
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and were included in the inventory
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een the property of the daughter up
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Moreover, the settlor may use a dee
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On final submission after evidence
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evidentiary material which has been
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that immediately thereafter the tru
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2. Arthur placed $100,000 worth of
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The co-executors and the trustee do
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not a will construction case, we ar
Page 746 and 747:
presently constituted does not effe
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2. Should the settlor be permitted
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