Law of Wills, 2016A

Notes and Questions
1. As the above example shows, the Modern per stirpes system treats all of Monica’s grandchildren
equally. If the English per stirpes approach is used, some of Monica’s grandchildren will receive
larger shares than the others. Which distribution do you think Monica would have chosen? What
might be the justification for the Modern per stirpes approach?
2. The Modern per stirpes systems has been adopted by almost half of the jurisdictions in the United
States. From a public policy standpoint, which approach do you think is better?
3. The intestacy system is meant to carry out the decedent’s presumed intent. Which approach do
you think enables the probate court to achieve that objective?
4. The examination of the manner in which the intestacy system treats descendants has been kept
general for the sake of simplicity. It may be more complex to apply the statute of a particular state.
For purposes of this course, the students only need to comprehend the basic underlying principles.
2.4.3 A Case Illustration
The debate about the meaning of “representation” continues. The purpose of the following
case is to demonstrate the difference between the two systems of distribution. The court discusses
three assignments of error. However, only one is relevant to the discussion of intestate distribution.
Thus, the case has been edited accordingly.
In re Estate of Evans, 827 N.W.2d 313 (Neb. App. 2013)
SIEVERS, Judge.
FACTUAL BACKGROUND
The decedent, Donald J. Evans, died intestate on October 2, 2011. At the time of his death, Donald
was domiciled in Wallace, Nebraska. Donald was not married at the time of his death, and he had no
surviving children or issue. Donald’s parents were deceased at the time of his death. Donald had
three brothers, Robert Evans, Stewart Evans, and Frederick Evans, but all three brothers
predeceased Donald. Of the brothers, Robert did not have any children. Stewart had three children:
Susan Evans Olson (Susan), Anna Evans, and Mary C. Evans. Anna predeceased Donald and did
not have any children. Frederick had two children: Ted L. Evans and John Evans. John predeceased
Donald and did not have any children. Thus, Donald was survived by nieces Susan and Mary (via
Stewart) and nephew Ted (via Frederick).
PROCEDURAL BACKGROUND
On March 8, 2012, Ted filed a petition for a formal adjudication of intestacy, a determination of
heirs, and an appointment of a personal representative of Donald’s estate. Ted alleged that a
statement of informal probate was entered on November 1, 2011, appointing Ted and Mary as
copersonal representatives of the estate. Although the appointment does not appear in our record,
their prior appointment as copersonal representatives is an undisputed fact. In his petition, Ted
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