Law of Wills, 2016A

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individual's genes. If we are to respect the right of procreation and parentage when a gestational surrogate is used, one of the first questions asked must concern consent of the genetic parents. The Johnson test fails to give that priority, and thus fails to provide adequate protection of basic rights. Other than Johnson v. Calvert and McDonald v. McDonald, this court can find no precedent or basis in the law, by analogy or otherwise, for establishing a natural parent by intent to procreate. The use of the intent test is truly a new and questionable framework upon which to base the determination of parentage. If a break with traditional law and public policy, as represented by the Johnson test, is to be made part of the law of this state, it must be argued that the legislature, through the scrutiny of public hearings and debate, is better situated than a judicial proceeding to test the effectiveness and appropriateness of such a change. Having rejected the Johnson test, this court must still provide a framework in which to decide this case. This court believes it to be more prudent to travel a known path and use existing law as a legal pattern to fashion new law. As has been stated, there is abundant precedent for using the genetics test for identifying a natural parent. For the best interest of the child and society, there are strong arguments to recognize the genetic parent as the natural parent. The genetic parent can guide the child from experience through the strengths and weaknesses of a common ancestry of genetic traits. Because that test has served so well, it should remain the primary test for determining the natural parent, or parents, in nongeneticproviding surrogacy cases. The test to identify the natural parents should be, “Who are the genetic parents?” When dealing with a nongenetic-providing surrogate, such a rule minimizes or avoids the question of the surrogate selling her right to be determined the natural parent. Since she has not contributed to the genetics of the child, and the genetic parent or parents have not waived their rights, she cannot be determined the natural parent. She cannot sell a right she does not have. In addition, given the relative certainty of DNA blood testing, such a foundation or test for parental identity would be simpler to apply and more certain in results than a Johnson-type intent test. However, a genetic test cannot be the only basis for determining who will assume the status of legal parent. The law must recognize the reality that the surrogate who did not provide the genetics of a child may wish to be the legal parent. There is precedent for recognition of her interest in becoming the legal parent. Because the surrogate, Carol S. Clark, has failed to assert parental rights, and no evidence exists of a consent or waiver, the legal status of a nongenetic-providing surrogate who claims parental rights is not at issue. Therefore, this court cannot properly rule upon the issues involved in determining that status. Returning to the original query of this case, what identifies a natural parent when a child is conceived by the use of in vitro fertilization and the surrogate who delivers the child provides none of the genetics of that child? The answer of this court is that the individuals who provide the genes of that child are the natural parents. However, this court further recognizes that a second query must be made to determine the legal parents, the individual or individuals who will raise the child. That question must be determined by the consent of the genetic parents. If the genetic providers have not waived their rights and have decided to raise the child, then they must be recognized as the natural and legal parents. By formulating the law in this manner, both tests, genetics and birth, are used in determining parentage. However, they are no longer equal. The birth test becomes subordinate and 311
secondary to genetics. In conclusion, under Ohio law, when a child is delivered by a gestational surrogate who has been impregnated through the process of in vitro fertilization, the natural parents of the child shall be identified by a determination as to which individuals have provided the genetic imprint for that child. If the individuals who have been identified as the genetic parents have not relinquished or waived their rights to assume the legal status of natural parents, they shall be considered the natural and legal parents of that child. Applying the foregoing law to the case at bar, this court has found that Anthony Belsito and Shelly Belsito are the genetic parents of the unborn child carried by Carol S. Clark, a gestational surrogate who was impregnated by in vitro fertilization. This court further finds that Anthony Belsito and Shelly Belsito have not waived their rights to be the natural and legal parents of that child. Therefore, this court must find, as a matter of law, that Anthony Belsito and Shelly Belsito are the natural and legal parents of the unborn child now carried by Carol S. Clark. Judgment Order IT IS THEREFORE THE ORDER OF THIS COURT, and this court does declare: 1. That Anthony Belsito and Shelly Belsito are the natural and legal parents of the child now carried by Carol S. Clark. 2. That the child is a legitimate child of Anthony Belsito and Shelly Belsito, and that, under the law of inheritance of this state, they may inherit through the child and the child may inherit through them. 3. That they have, in relationship to that child, all other rights and responsibilities that are entailed in a parent-child relationship. 4. That, based on the foregoing, an adoption proceeding under R.C. Chapter 3107 is unnecessary. 5. That upon the birth of the child, pursuant to this court's authority under R.C. 3705.09 and R.C. Chapter 2721, the birth certificate of the child shall list Anthony Belsito as father and Shelly Belsito as mother. So ordered. Notes and Questions 1. The Court stated “By formulating the law in this manner, both tests, genetics and birth, are used in determining parentage. However, they are no longer equal. The birth test becomes subordinate and secondary to genetics.” Do you agree with the Court’s reasoning? Should the birth test be subordinate to genetics? Why? Why not? 2. Is the application of the genetics test always in the best interests of the child? 312
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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
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distribution statute. After a heari
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(b) Taking against the will of any
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has urged me not to adjudicate this
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going back to at least 1877. The si
Page 284 and 285: ear his children. Some may question
Page 286 and 287: of Mr. Finley. The claims were deni
Page 288 and 289: is left void, superfluous or insign
Page 290 and 291: (James's issue, in the case of cert
Page 292 and 293: In order for a post-conceived child
Page 294 and 295: unless the deceased individual cons
Page 296 and 297: Questions 1. Which one of the above
Page 298 and 299: Mitch’s sperm to become pregnant.
Page 300 and 301: Background Husband and Wife were ma
Page 302 and 303: any other file, are subject to insp
Page 304 and 305: husband will not hold them responsi
Page 306 and 307: K.S. v. G.S., 440 A.2d 64 (N.J. Sup
Page 308 and 309: In New Jersey, in order to sufficie
Page 310 and 311: protect the best interests of the c
Page 312 and 313: Turning to the specific issue befor
Page 314 and 315: Husband argues implied consent to a
Page 316 and 317: want to participate in, nor did he
Page 318 and 319: structure of the statute does not l
Page 320 and 321: 6.5 The Paternity of the Sperm Dono
Page 322 and 323: parent's constitutional right to pr
Page 324 and 325: Greenwald, 743 A.2d 977, 979 (Pa.Su
Page 326 and 327: Custody order affirmed. Support ord
Page 328 and 329: a large family. Unfortunately, appr
Page 330 and 331: The analysis and law in support of
Page 332 and 333: mother under California law.” Joh
Page 336 and 337: 3. Should genetics be the sole indi
Page 338 and 339: A bond is created between a gestati
Page 340 and 341: 8. Should there be a presumption th
Page 342 and 343: Passage of the Act clearly was not
Page 344 and 345: In deciding the issue of maternity
Page 346 and 347: 6.6.1.4 The Best Interests of the C
Page 348 and 349: holding of the Court of Appeals tha
Page 350 and 351: In anticipation of trial, Charles a
Page 352 and 353: framework for our analysis. 2. The
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Page 356 and 357: Johnson has “discarded both genet
Page 358 and 359: in any event there is now a lack of
Page 360 and 361: Instead we affirm on separate and n
Page 362 and 363: Under California law, a judgment of
Page 364 and 365: Part II —The Testacy System Chapt
Page 366 and 367: But the end of future allotment by
Page 368 and 369: action to encourage consolidation.
Page 370 and 371: deceased, and others. To review a j
Page 372 and 373: 5. Suppose that Congress required r
Page 374 and 375: It will not be questioned that marr
Page 376 and 377: disowned as a member; or if she hav
Page 378 and 379: 7.2.2 Some Restrictions are Reasona
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Page 382 and 383: 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
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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
Page 512 and 513:
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
Page 520 and 521:
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
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
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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,
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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
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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
Page 592 and 593:
wishes and intentions stated in the
Page 594 and 595:
Fifth. It is clear that the judge f
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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
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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
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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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