Law of Wills, 2016A

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A bond is created between a gestational mother and the baby she carries in her womb for nine months. During the pregnancy, the fetus relies on the gestational mother for a myriad of contributions. A gestational mother’s endocrine system determines the timing, amount and components of hormones that affect the fetus. The absence of any component at its appropriate time will irreversibly alter the life, mental capacity, appearance, susceptibility to disease and structure of the fetus forever. The gestational mother contributes an endocrine case that determines how the child will grow, when its cells will divide and differentiate in the womb, and how the child will appear and function for the rest of its life. (citations omitted) In this case, Gina has previously had one child and therefore had an understanding of what is involved in carrying a pregnancy to term at the time she signed the contract. The problem case will present itself when a gestational mother changes her mind and wishes to keep the newborn. This may be more likely where a gestational mother has never had a child and is unfamiliar with the emotions and biological changes involved in a pregnancy. She will not be able to predict what her feelings will be towards the child she bears. Her body will undergo significant changes and she will continue to react biologically as any other birth mother. In this case it seems likely that the transfer of the child will occur without incident due to the close family ties of the parties and Gina’s previous experience with childbirth. However, although Gina is extremely likely to surrender her rights as planned, she must not be completed to do so in a pre-birth order. New Jersey regulations governing the creation of birth records state that the woman who gives birth must be recorded as a parent on the birth certificate. NJAC 8:2-1.4(a). This regulation would normally necessitate that Gina’s name be placed on the birth certificate along with her brother-inlaw, Peter, as the father. However, all parties have agreed by written contract that Andrea and Peter’s names should be placed on the birth certificate. In New Jersey, as required by NJSA 26:8-28(a), a birth certificate must be issued and filed within five days of birth with the local registrar of the district in which the birth occurred. Pursuant to NJSA 26:8-30, “the attending physician, midwife or person acting as the agent of the physician or midwife, who was in attendance upon the birth shall be responsible for the proper execution and return of a certificate of birth.” In recognition of the emotional and physical changes in the mother which occur at birth, voluntary surrenders are not valid if taken within seventy-two hours after the birth of the child. NJSA 9:3- 41(e). Thus after the seventy-two hours have elapsed, Gina will be able to lawfully surrender her parental rights. She will have the responsibility of making decisions for the child during this seventy-hour period, even if her ultimate decision is to surrender her parental rights. It is not necessary to now determine what parental rights, if any, the gestational mother may have vis-a-vis the newborn infant. That decision will have to be made if and when a gestational mother attempts to keep the infant after birth in violation of the prior agreement. Here, Gina, Peter and Andrea are closely related. The parties’ detailed fifteen page agreement clearly reflects their shared intent and desired outcome for this case. Further, Gina, as Andrea’s sister and Peter’s sister-in-law knows the biological parents intimately and is in an excellent position to know the type of home they will provide for the child. Thus almost certainly Gina will honor the contract and surrender her rights. Conclusion 315
The Legislature may well choose to clarify the rights and responsibilities of parties in a gestational surrogacy. The most prudent course, prior to legislative action, is to follow the current statutes as closely as possible while allowing the parties, to the maximum extent possible, the relief requested. A court order for the pre-birth termination of the pregnant defendant’s parental rights is the equivalent of making her subject to a binding agreement to surrender the child and is contrary to New Jersey statutes and Baby M. Therefore, the gestational mother may surrender the child seventy-two hours after giving birth, which is forty-eight hours before the birth certificate must be prepared. If Gina does choose to surrender the infant, and she certifies that she wishes to relinquish all rights, then the original birth certificate will list the two biological parents, Andrea and Peter, as the baby’s parents. If Gina changes her mind once the baby is born, she will have a chance to litigate for parental rights to the child. The attending physician who delivers Baby A should prepare a Certificate of Parentage four days after the birth of the child. This waiting period will allow Gina to surrender her parental right after seventy-two hours and also allow a birth certificate to be issued within five days of birth. After Gina surrenders any parental rights she might have, the Certificate of Parentage shall be completed with Peter as the legal father and Andrea the legal mother. This solution represents a modification of the agreement between the parties to the least extent necessary to comply with current New Jersey statutes and the public policy concerns expressed by the Supreme Court in Baby M. Note and Questions 1. If Gina dies before surrendering her parental rights, would the child be eligible to inherit from her estate? 2. The Court claims that it is not deciding the issue of the parental rights of a gestational mother. Is that true? By deciding that the gestational surrogate has a choice whether or not to surrender her parental rights, isn’t the Court establishing a parent-child relationship between her and the child? 3. The Court refers to Gina as a gestational mother instead of a gestational surrogate. Doesn’t that fact indicate that the Court is favoring gestation over genetics? 4. Since Gina is not genetically related to the child, should she be able to litigate to have parental rights over the child? 5. If a client comes to you seeking advice about using a gestational surrogate in this jurisdiction, what would you recommend? 6. What are the advantages and disadvantages of using the birth test to determine maternity? 7. The Court seems reluctant to force the gestational mother to surrender her parental rights. However, in New Jersey, the parental rights of sperm donors are automatically waived at the time they donate sperm. Does it make sense to be more protective of the parental rights of a woman with no genetic connection to the child than of the parental rights of the man who contributes the genetic material used to create the child? 316
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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
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ear his children. Some may question
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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
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 334 and 335: individual's genes. If we are to re
Page 336 and 337: 3. Should genetics be the sole indi
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
Page 384 and 385: By exercising her power of appointm
Page 386 and 387: 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
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
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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
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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
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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
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.
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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
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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
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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
Page 566 and 567:
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
Page 594 and 595:
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
Page 604 and 605:
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
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
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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
Page 632 and 633:
een executed in compliance with N.J
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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
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Example 3: In 2013, Freda left a wi
Page 644 and 645:
alike, with the share going to Fran
Page 646 and 647:
cousins were dead when testator exe
Page 648 and 649:
At the outset, we are not persuaded
Page 650 and 651:
The court has followed this rule in
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
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a brother, Giuseppe, and a sister,
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Early in 2006, Cal Jr. and his wife
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926, 280 P.3d 1110 (2012). Our prim
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esults from allowing the natural ob
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15.3.2.1 Language of the Will M.S.A
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antilapse statutes have been constr
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decedent”). Thus, although the pr
Page 680 and 681:
antilapse statute, words of survivo
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(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
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the testator’s lifetime, that gif
Page 702 and 703:
him even a small sum with intent to
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
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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
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
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
Page 728 and 729:
and were included in the inventory
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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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