Law of Wills, 2016A

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A. There were plenty of instances where he tried to intimidate me physically. But as for hitting me, it was confined to 97 and one in 94–95. Q. Did you— A. And that was in front of the aunts too. Q. What happened then? A. He started an argument with Mildred about giving me money and about me being around them, which is what he usually complains about. And when she told him to get out, he said, I’m not going anywhere. Then he promptly punched me in the stomach in front of them and I went down like a ton of bricks. He’s a martial—he knew martial arts at this time. So he was pretty strong at that time....” Proponent’s violence and other intimidating behavior had a keen effect on decedent. Kate testified at her deposition: “... I remember the conversation happening at the end of August, beginning of September of 97 where she said one day—I came in one day to talk to her. “She said—and I quote—I did a really stupid thing. I made your brother the executor of my estate and I should have made you that, meaning me. And I said, Well, easy thing to do. Call your lawyer and have it changed if that’s what you want to do. “Oh, no. If I do that, he’ll hurt me. And I was, like, Um, it’s your estate. You shouldn’t have to be intimidated by him. If you’re afraid of calling the lawyer, I’ll call the lawyer. No. If you do that, he’s just going to end up making things a lot worse and he’s going to hurt you and I don’t want that on my conscience. * * * * * “And I talked to her about it and I said, Well, it’s your money. It’s your estate. If you don’t want John to be the executor, you have the right to call your lawyer and have it changed. “She kept saying that if she did that, John would hurt her. Which I could believe, because he intimidated her a lot over the years.” There is also evidence decedent believed that, even if she were to make a new will—and expose herself and Kate to the risk of proponent’s violence—proponent, nevertheless, would thwart her intent. Kate testified at her deposition that, in 2002, when Loretta complained that proponent had taken $10,000 from her: “Mildred said, Well, he did the same thing to me. I mean, he’s the executor of my estate and I really don’t want him to be.... And then she said, Well, he’s probably going to find a way to steal my money anyway....” 457
Decedent’s declarations to Kate that: (1) if she were to contact her lawyer about making a new will, proponent would “hurt me,” (2) if Kate were to contact the lawyer on decedent’s behalf, proponent’s “going to hurt you,” and (3) regardless of the terms of her will, proponent would “find a way to steal” the assets of her estate, are not considered for their truth or falsity. Rather, these statements fall within the state of mind exception to the hearsay rule (see Prince on Evidence § 8– 106). As the Court of Appeals explained: “No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true of false, is compelling evidence of her feelings toward, and relations to, [in the instant case, proponent]. As such it is not excluded under the hearsay rule but is admissible as a verbal act.” Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 311 (1943). The credibility of Kate’s testimony, as to “the fact that such a declaration was made by the decedent,” and, if credible, the significance of such declarations, would be for a trier of fact to decide. Undue Influence: Courts have long wrestled with the concept of undue influence. In the nineteenth century, the Court of Appeals noted: “It is impossible to define or describe with precision and exactness what is undue influence; what the quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will. Like the question of insanity, it is to some degree open and vague, and must be decided by the application of sound principles and good sense to the facts of each given case. [Citation omitted.] But the influence exercised over a testator which the law regards as undue or illegal, must be such as to destroy his free agency; but no matter how little the influence, if the free agency is destroyed it vitiates the act which is the result of it. In 1 Jarman on Wills, 36, it is said: That the amount of undue influences which will be sufficient to invalidate a will must of course vary with the strength or weakness of the mind of the testator; and the influence which would subdue and control a mind naturally weak, or one which had become impaired by age, sickness, disease, intemperance, or any other cause, might have no effect to overcome or mislead a mind naturally strong and unimpaired.’ “The undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person. [Citations omitted.]” Rollwagen v. Rollwagen, 63 N.Y. 504, 519 (1876). A year later, the Court of Appeals amplified its definition, explaining that influence is undue if it: “amounted to a moral coercion, which restrained independent action and 458
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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
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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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Page 434 and 435: discounted his testimony. Instead,
Page 436 and 437: Under these circumstances, we agree
Page 438 and 439: contests the will has the burden of
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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 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
Page 488 and 489: cause of action against the third p
Page 490 and 491: intended to induce [Mr.] Schilling
Page 492 and 493: Does Florida law, statutory or othe
Page 494 and 495: Class Discussion Tool (Answer this
Page 496 and 497: (a) Is written, created and stored
Page 498 and 499: Steve Godfrey (“Deceased”) prep
Page 500 and 501: Defendant made a properly supported
Page 502 and 503: who presided at the hearing and hea
Page 504 and 505: Later in the afternoon Fred and his
Page 506 and 507: position, that the witnesses are si
Page 508 and 509: testator’s death.” Kay purporte
Page 510 and 511: will was properly executed. Id. The
Page 512 and 513: Viewing this evidence in a light mo
Page 514 and 515: 296, 297, which was a proceeding to
Page 516 and 517: void. In Fowler v. Stagner, supra,
Page 518 and 519: extent the subsequent will is incon
Page 520 and 521: For more than one hundred years, th
Page 522 and 523: 2002. Elizabeth and Kelly are the b
Page 524 and 525: when they prepared their wills in 2
Page 526 and 527: execution, or its contents. Rather,
Page 528 and 529: secreted by some other person with
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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
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een adopted by nearly every State-i
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Motor Co., 529 U.S. 861, 873, 120 S
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purpose with federalism’s need to
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and were included in the inventory
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een the property of the daughter up
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Moreover, the settlor may use a dee
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On final submission after evidence
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evidentiary material which has been
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that immediately thereafter the tru
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2. Arthur placed $100,000 worth of
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The co-executors and the trustee do
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not a will construction case, we ar
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presently constituted does not effe
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2. Should the settlor be permitted
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