Law of Wills, 2016A

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extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. 11.6.1 By Later Writing A subsequent writing can explicitly or implicitly revoke a will. An expressed revocation occurs when the later testamentary writing expressly states that intent. For instance, the later document states, “I revoke all prior wills.” Courts treat a later writing that makes a complete disposition of the testator’s estate as presumptively replacing the previous will and revoking it by inconsistency. If the subsequent writing does not completely dispose of the testator’s estate, courts do not presume it to revoke the prior will but view it as a codicil. As a result, the property that is not disposed of by the codicil is distributed based on the terms of the previous will. Example: In 2000, Carmen executes a will stating, “I leave my entire estate to my cousin, Paige.” In 2013, Carmen executes a will stating, “I leave my entire estate to my brother, Simon.” Explanation: The 2013 will revokes the 2000 will by inconsistency. Therefore, Simon takes the entire estate. Example: In 2000, Carmen executes a will stating, “I leave my entire estate to my cousin, Paige.” In 2013, Carmen executes a will stating, “I leave my house to my brother, Simon.” Explanation: Courts will consider the 2000 will to be a codicil because it only deals with a portion of Carmen’s estate. Therefore, Simon takes the house and Paige gets the rest of Carmen’s estate. Problems 1. In 2012, Ellen executes a will stating, “I leave all of my property to James.” In 2013, Ellen executes a will stating, “I leave my car to Dana and my boat to Maggie.” In 2014, Ellen and Dana have a disagreement. As a result, Ellen burns the 2013 will with the intent of revoking it. In 2015, Ellen dies. How will her estate be distributed? In re Griffis’ Estate, 330 So.2d 797 (Fla. 1976). 2. In 2009, Dewey executes a will stating, “I leave my entire estate to Donald and Daisy.” In 2011, Dewey executes a will stating, “I leave my house to Alice.” In 2013, Dewey shreds the 2009 will with the intent of revoking it. In 2015, Dewey dies. How will his estate be distributed? In re Schild’s Will, 72 Misc. 2d 225 (N.Y. Sur. 1972). 495
11.6.2 By Physical Act The Wills Act allows testators to revoke their wills by physical act. In order to have the revocation recognized, the testator must comply with the statutory requirements. In some cases, courts will presume revocation with the intent to revoke if the testator destroys the will in a state that allows revocation of a will by physical act. The court assumes that the testator destroyed the will if it was last seen in his or her possession and it is not found after he or she dies. The problem with this presumption of destruction is that the person who usually searches for the will expects to take under the will. If that expectation does not come to fruition, the person may be motivated to claim that the will could not be found. This presumption is rebuttable. 11.6.2.1 Attempted Destruction Thompson v. Royall, 175 S.E. 748 (Va. 1934) HUDGINS, J., delivered the opinion of the court. The only question presented by this record, is whether the will of Mrs. M. Lou Bowen Kroll had been revoked shortly before her death. The uncontroverted facts are as follows: On the 4th day of September, 1932, Mrs. Kroll signed a will, typewritten on five sheets of legal cap paper; the signature appeared on the last page duly attested by three subscribing witnesses. H. P. Brittain, the executor named in the will, was given possession of the instrument for safe-keeping. A codicil typed on the top third of one sheet of paper dated September 15, 1932, was signed by the testatrix in the presence of two subscribing witnesses. Possession of this instrument was given to Judge S. M. B. Coulling, the attorney who prepared both documents. On September 19, 1932, at the request of Mrs. Kroll, Judge Coulling, and Mr. Brittain took the will and the codicil to her home where she told her attorney, in the presence of Mr. Brittain and another, to destroy both. But instead of destroying the papers, at the suggestion of Judge Coulling, she decided to retain them as memoranda, to be used as such in the event she decided to execute a new will. Upon the back of the manuscript cover, which was fastened to the five sheets by metal clasps, in the handwriting of Judge Coulling, signed by Mrs. Kroll, there is the following notation: ‘This will null and void and to be only held by H. P. Brittain, instead of being destroyed, as a memorandum for another will if I desire to make same. This 19 Sept 1932 ‘M. LOU BOWEN KROLL.‘ The same notation was made upon the back of the sheet on which the codicil was written, except that the name, S. M. B. Coulling, was substituted for H. P. Brittain; this was likewise signed by Mrs. Kroll. Mrs. Kroll died October 2, 1932, leaving numerous nephews and nieces, some of whom were not mentioned in her will, and an estate valued at approximately $200,000. On motion of some of the beneficiaries, the will and codicil were offered for probate. All the interested parties including the heirs at law were convened, and on the issue, devisavit vel non, the jury found that the instruments dated September 4th and 15, 1932, were the last will and testament of Mrs. M. Lou Bowen Kroll. From an order sustaining the verdict and probating the will this writ of error was allowed. 496
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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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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
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
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 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
Page 530 and 531: As in Jackson and Bowery, it is dem
Page 532 and 533: Hurricane Katrina, a large number o
Page 534 and 535: LAW OF WILLS § 21.57 at 446 (rev.
Page 536 and 537: furniture in the house was left to
Page 538 and 539: intestate but held that “however
Page 540 and 541: evocation was based on her mistaken
Page 542 and 543: 2. In 2001, Madison executed a will
Page 544 and 545: to treat this as a revocation is du
Page 546 and 547: Section 70 states: “If a person m
Page 548 and 549: Problems (1) If the testator had no
Page 550 and 551: It appears from the record that on
Page 552 and 553: The object of the statute is not to
Page 554 and 555: does the will contain anything indi
Page 556 and 557: Chapter Twelve: Non-Attested Wills
Page 558 and 559: when it appears thereby that the de
Page 560 and 561: signature, but part of an unfinishe
Page 562 and 563: emember the North Shore Animal Leag
Page 564 and 565: 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
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Fifth. It is clear that the judge f
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twenty to thirty minutes, during wh
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distinctly extraneous document, but
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Example: On March 4, 2014, T execut
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Explanation: T’s motivation for b
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at issue. 2 Page The Law of Wills s
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Lawson exerted undue influence on S
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embodiment of the Will Contract New
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Problems 1. Jason, a seventy year o
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to do necessary work about the plac
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The terms of the bequest exactly fi
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In the first paragraph she directed
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‘The decedent may have thought he
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correction? May the law not untie t
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testamentary intent?; and (2) Does
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Russell’s will gives Betty a life
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affiants, with the intent to act as
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supra, 63 Wash.U.L.Q. at 60; Nelson
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decedent had not seen or had any co
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een executed in compliance with N.J
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final assent to the document. Clear
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Affirmed. In re Estate of Sky Dance
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Although a will was not executed in
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Chapter Fifteen: The Stale Will Pro
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Example 3: In 2013, Freda left a wi
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alike, with the share going to Fran
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cousins were dead when testator exe
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At the outset, we are not persuaded
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The court has followed this rule in
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‘ITEM IV. My real estate located
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effect, (sic) when both description
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intended a half and half division o
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Personal to Chester H. Quinn & Roxy
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2d 199, 214, 238 P.2d 966, 975). Th
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131 P.2d 825; Parsons v. Bristol De
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3. Patent vs. latent ambiguity: Acc
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a brother, Giuseppe, and a sister,
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Early in 2006, Cal Jr. and his wife
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926, 280 P.3d 1110 (2012). Our prim
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esults from allowing the natural ob
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15.3.2.1 Language of the Will M.S.A
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antilapse statutes have been constr
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decedent”). Thus, although the pr
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antilapse statute, words of survivo
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(1997), the antilapse statute, gove
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generally provided that the propert
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testator left all her property to h
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15.4 Ademption The law considers a
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Sewell also obtained an appraisal o
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contravention of the power of attor
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the Fiduciaries [Sewell and Judkins
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thereby allowing the imposition of
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intentional interference with an in
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the testator’s lifetime, that gif
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him even a small sum with intent to
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(c) If the devisee fails to survive
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When this lawsuit was filed, approx
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The doctrine of exoneration has bee
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e paid by the Estate, the debt secu
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16.2.1 Changing the Beneficiary A l
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Accordingly, we affirm the order of
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his consent and without notice to h
Page 718 and 719:
Egelhoff v. Egelhoff ex rel. Breine
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would survive,’ as well as to the
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
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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
Page 742 and 743:
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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