Law of Wills, 2016A

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contests the will has the burden of showing that the testator was incompetent when he or she executed the will. The existence of a conservatorship or a guardianship does not create the presumption that the protected person lacks testamentary capacity. 2. Sophia hired a lawyer to execute her will. When she filled out the will questionnaire, Sophia included the Golden Gate Bridge as one of her assets. Does this indicate that she lacks testamentary capacity? 3. Madge told the lawyer drafting her will that she had three children, five grandchildren and one great-grandchild. In fact, Madge has only two grandchildren and no great-grandchildren. Does this indicate that she lacks testamentary capacity? 4. In the Romero case, what evidence did the contestants present to support their claimed that the testator lacked testamentary capacity? Why did the court hold that Romero had the necessary capacity? Why did they argue that Romero was suffering from an insane delusion? 5. In the Romero case, what was the test for testamentary capacity under the VA regulations? Would the outcome of the case have been the same if the court had applied that test? 6. Why did the Romero court determine that the fact that a guardian had been appointed for Romero did not impact his testamentary capacity? Do you agree with that determination? Matter of Estate of Oliver, 934 P.2d 144 (Kan. App. 1997) GERNON, Presiding Judge: This is a will contest case. The contestants, Lenard and Charlene Miller, appeal the trial court’s decision to admit the will of Alta E. Oliver into probate. Oliver died in 1993 at the age of 93, leaving an estate of approximately $400,000. She was survived by a sister and several nieces and nephews. The Millers were friends with Oliver. From 1978 until her death, Oliver wrote several different wills, leaving the Millers as beneficiaries in each, but in varying degrees. In 1985, the Millers took Oliver to her attorney, Raymond Stein, and she executed a will which made the Millers the principal beneficiaries. In 1988, a guardian and a conservator were appointed for Oliver. She also entered a nursing home that fall. In November 1988, several of Oliver’s relatives, including her sister, visited her and tape recorded their conversation with her. The substance of the conversation was to advise Oliver that she had given Lenard Miller control of her estate and to urge her to see her lawyer to check her estate plan. One nephew, Charles Albert, subsequently asked Guy Steier, Oliver’s guardian ad litem, to meet 415
with Oliver because he felt she wanted more input into her personal affairs. Steier met with Oliver in January 1989. Steier testified that Oliver seemed surprised she had so much money in various accounts. He testified that at that time, she expressed reservations about the amounts the Millers would receive under the will. She stated, according to Steier, that she wanted more input as to how her affairs were being handled. Steier contacted the local mental health center and requested an evaluation of Oliver. A hearing on a petition for restoration of capacity was held, at which time the results of the evaluation were presented. The magistrate judge found that Oliver was a disabled person and ordered the guardianship and conservatorship to continue. The magistrate made no ruling as to her testamentary capacity. Oliver’s niece, Charlene Rupe, was appointed guardian, and a bank was appointed as conservator. In June 1989, Rupe and two other nieces took Oliver to the bank where her certificates of deposit naming the Millers as the payable on death recipients were located. A bank teller, Peg Kenningsman, testified that Oliver informed her she wanted to change the beneficiaries on her certificates of deposit. Kenningsman testified that Oliver did not talk with her nieces while at the bank and never wavered in her request. Kenningsman testified that Oliver appeared to know what she was doing. That same day, the nieces took Oliver to see Steier. Steier met with Oliver in private. The 1985 will was reviewed in detail, and Oliver, according to Steier, made very specific and knowledgeable changes to the will. Two days later, Steier again met with Oliver. They reviewed the will, and Oliver made a change in one of the clauses. On June 30, 1989, Steier and two of his employees, Janet Holway and Marilyn Huffman, went to see Oliver at the nursing home with the final draft of the will. When they arrived, Oliver was playing cards and Steier noted that her cards were properly organized and she was playing the correct meld. After she finished playing the hand, they went to her room and reviewed the 1985 will and the new one. Steier stated that Oliver knew her family, her land, and where her bank certificates and accounts were generally located, but she was not sure how much money was in the accounts. When Steier suggested $190,000, Oliver was still not sure about the amount but stated that she trusted him. Oliver executed the will in the presence of Steier, Holway, and Huffman. Steier and Holway signed as witnesses, and Huffman notarized the document. Steier testified that in his opinion, Oliver possessed testamentary capacity at that time and was not under undue influence. Holway also testified that in her opinion, Oliver knew who her relatives were, what her assets were, and why they were present in her room on June 30, 1989. The 1989 will was submitted for probate. The Millers contested the validity of the 1989 will, claiming that Oliver lacked testamentary capacity at the time the will was executed. Can a conservatee make testamentary decisions? The Millers first argue that since Oliver was a disabled person under K.S.A. 59-3002(a) and had a guardian and conservator involuntarily appointed for her, she lacked the required capacity to execute the 1989 will and to change the beneficiaries on her payable on death certificates of deposit. They 416
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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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is left void, superfluous or insign
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(James's issue, in the case of cert
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In order for a post-conceived child
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unless the deceased individual cons
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Questions 1. Which one of the above
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Mitch’s sperm to become pregnant.
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Background Husband and Wife were ma
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any other file, are subject to insp
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husband will not hold them responsi
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K.S. v. G.S., 440 A.2d 64 (N.J. Sup
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In New Jersey, in order to sufficie
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protect the best interests of the c
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Turning to the specific issue befor
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Husband argues implied consent to a
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want to participate in, nor did he
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structure of the statute does not l
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6.5 The Paternity of the Sperm Dono
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parent's constitutional right to pr
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Greenwald, 743 A.2d 977, 979 (Pa.Su
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Custody order affirmed. Support ord
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a large family. Unfortunately, appr
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The analysis and law in support of
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mother under California law.” Joh
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individual's genes. If we are to re
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3. Should genetics be the sole indi
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A bond is created between a gestati
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8. Should there be a presumption th
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Passage of the Act clearly was not
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In deciding the issue of maternity
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6.6.1.4 The Best Interests of the C
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holding of the Court of Appeals tha
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In anticipation of trial, Charles a
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framework for our analysis. 2. The
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contemplate or to control the circu
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Johnson has “discarded both genet
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in any event there is now a lack of
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Instead we affirm on separate and n
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Under California law, a judgment of
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Part II —The Testacy System Chapt
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But the end of future allotment by
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action to encourage consolidation.
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deceased, and others. To review a j
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5. Suppose that Congress required r
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It will not be questioned that marr
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disowned as a member; or if she hav
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7.2.2 Some Restrictions are Reasona
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marriage which imposes only reasona
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National Bank (1961), 87 Ohio Law A
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By exercising her power of appointm
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Max’s beneficiary restriction was
Page 388 and 389: adoption, in 1969, of the Statute C
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Page 392 and 393: of this estate. In the absence of t
Page 394 and 395: We conclude, reading Ransdell, Shac
Page 396 and 397: 7. Suppose Dr. Shapira’s will con
Page 398 and 399: 8.3.1 Example Ross had three childr
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Page 402 and 403: Andrews, 125 Nev. 397, 406, 215 P.3
Page 404 and 405: planning unpredictable. In essence,
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Page 408 and 409: child’s interests in the father
Page 410 and 411: majority of cases hold that under m
Page 412 and 413: West’s Alaska Statutes Annotated
Page 414 and 415: The statute also instructs that acq
Page 416 and 417: While we believe the court did not
Page 418 and 419: stirpes.’ Further, even if Margar
Page 420 and 421: This action began with a petition f
Page 422 and 423: The objectors argue that because Li
Page 424 and 425: Terry L. Armstrong, John’s brothe
Page 426 and 427: meaning of “wilfully,” finding
Page 428 and 429: he killed because an insane person
Page 430 and 431: 5. From a public policy perspective
Page 432 and 433: Chapter Nine: Testamentary Capacity
Page 434 and 435: discounted his testimony. Instead,
Page 436 and 437: Under these circumstances, we agree
Page 440 and 441: maintain the trial court erred in f
Page 442 and 443: executed. All other evidence concer
Page 444 and 445: he continued to love Valerie and mi
Page 446 and 447: the 2001 report, he would have cons
Page 448 and 449: with testator at rehabilitation hos
Page 450 and 451: half of $75,000 upon the death of h
Page 452 and 453: The policy of the law favors testac
Page 454 and 455: testimony supported the conclusion
Page 456 and 457: $200 to purchase clothes for hersel
Page 458 and 459: evidence to be highly probable. In
Page 460 and 461: slipping the wheatgrass on his sala
Page 462 and 463: Noblin v. Burgess, 54 So.3d 282 (Mi
Page 464 and 465: [An appellate court] resolves all c
Page 466 and 467: presence of Burgess and McDill, as
Page 468 and 469: physically intimate, and that at so
Page 470 and 471: matter. We cannot say that the chan
Page 472 and 473: 10.2.2 Undue Influence If the presu
Page 474 and 475: II. Scope and Standards of Review.
Page 476 and 477: dominating influence over Clair in
Page 478 and 479: In re Estate of Rosasco, 31 Misc. 3
Page 480 and 481: A. There were plenty of instances w
Page 482 and 483: 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
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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
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Egelhoff v. Egelhoff ex rel. Breine
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would survive,’ as well as to the
Page 722 and 723:
een adopted by nearly every State-i
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
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and were included in the inventory
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een the property of the daughter up
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Moreover, the settlor may use a dee
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On final submission after evidence
Page 736 and 737:
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
Page 742 and 743:
The co-executors and the trustee do
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not a will construction case, we ar
Page 746 and 747:
presently constituted does not effe
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2. Should the settlor be permitted
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