Law of Wills, 2016A

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Chapter Twelve: Non-Attested Wills 12.1 Introduction A large number of people die intestate because they do not take the time to execute a will. In Chapter Eleven, we discussed the requirements necessary to execute a validly attested will. It is thought that the required formalities deter persons from executing wills. Some jurisdictions permit people to have less formal wills. These wills do not have to be witnessed and provide more convenient options for persons who may be intimidated by the traditional wills process. The majority of this chapter consists of an examination of the legal issues that occur when a person seeks to dispose of his or her property by using a holographic will. This chapter also includes a brief discussion of nuncupative (oral) wills. 12.2 Holographic Will Uniform Probate Code § 2-502. Execution; Witnessed or Notarized Wills; Holographic Wills. (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting. (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting. A holographic will is a will that is handwritten. In order to be valid, the will must be written in the testator’s handwriting and it must contain the testator’s signature. The entire will does not have to be in the testator’s handwriting; however, the material portions, including those parts showing testamentary intent, must be in the testator’s handwriting. About half of the states recognize holographic wills. The challenges to these types of wills usually focus upon the validity of the testator’s signature and the inclusion of information in the will that is not in the testator’s handwriting. Internet sites like LegalZoom have pre-printed will forms that testator’s can fill out. If these wills are not properly witnessed, they may be submitted to probate as holographic wills. Therefore, courts have to determine whether or not those types of wills satisfy the requirements necessary to be valid holographic wills. 12.2.1 Testamentary Intent A will speaks at death, so the testator must intend for the gift to only take effect after he or 533
she dies. However, the testator must have a present intent to make the transfer even though the transfer will not be completed until after death. When evaluating the validity of a holographic will, it is critical that the court determine whether or not the person meant for the instrument to be testamentary in nature. The execution of an attested will includes a formal process. The lawyer, the testator, and the witnesses gather for the signing ceremony. Thus, there is no doubt that the purpose of the document that is signed by the testator and the witnesses is to govern the distribution of the testator’s property after he or she dies. Since a holographic will may be written on a wall, a napkin, an envelope or any other surface, the testamentary nature of the writing may not be so evident. In re Kimmel’s Estate, 278 Pa. 435 (Pa. 1924) SIMPSON, J. One of decedent’s heirs at law appeals from a decree of the orphans’ court, directing the register of wills to probate the following letter: ‘Johnstown, Dec. 12. ‘The Kimmel Bro. and Famly We are all well as you can espec fore the time of the Year. I received you kind & welcome letter from Geo & Irvin all OK glad you poot your Pork down in Pickle it is the true way to keep meet every piece gets the same, now always poot it down that way & you will not miss it & you will have good pork fore smoking you can keep it from butchern to butchern the hole year round. Boys, I wont agree with you about the open winter I think we are gone to have one of the hardest. Plenty of snow & Verry cold verry cold! I dont want to see it this way but it will come see to the old sow & take her away when the time comes well I cant say if I will come over yet. I will wright in my next letter it may be to ruff we will see in the next letter if I come I have some very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3 Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin Kepp this letter lock it up it may help you out. Earl sent after his Christmas Tree & Trimmings I sent them he is in the Post office in Phila working. ‘Will clost your Truly, Father.’ This letter was mailed by decedent at Johnstown, Pa., on the morning of its date-Monday, December 12, 1921-to two of his children, George and Irvin, who were named in it as beneficiaries; the envelope being addressed to them at their residence in Glencoe, Pa. He died suddenly on the afternoon of the same day. Two questions are raised: First. Is the paper testamentary in character? Second. Is the signature to it a sufficient compliance with our Wills Act? Before answering them directly, there are a few principles, now well settled, which, perhaps, should be preliminarily stated. While the informal character of a paper is an element in determining whether or not it was intended to be testamentary (Kisecker’s Estate, 190 Pa. 476, 42 Atl. 886), this becomes a matter of no moment 534
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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
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physically intimate, and that at so
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matter. We cannot say that the chan
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10.2.2 Undue Influence If the presu
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II. Scope and Standards of Review.
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dominating influence over Clair in
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In re Estate of Rosasco, 31 Misc. 3
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A. There were plenty of instances w
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destroyed free agency, or which, by
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Duress: In the context of contested
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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
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
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 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
Page 568 and 569: In Alexander’s Estate v. Hatcher,
Page 570 and 571: The right to make a will disposing
Page 572 and 573: I The facts—all of which are undi
Page 574 and 575: For example, in Estate of Baker, 59
Page 576 and 577: can come to no other conclusion wit
Page 578 and 579: 5. Nellie and her sisters, Connie a
Page 580 and 581: I. Facts and Procedural History Thi
Page 582 and 583: eference into the Will. We reverse
Page 584 and 585: the completed form to his office pr
Page 586 and 587: (a) The Trustee shall pay the entir
Page 588 and 589: Even in those states in which such
Page 590 and 591: equest to ‘heirs’ or ‘childre
Page 592 and 593: wishes and intentions stated in the
Page 594 and 595: Fifth. It is clear that the judge f
Page 596 and 597: twenty to thirty minutes, during wh
Page 598 and 599: distinctly extraneous document, but
Page 600 and 601: Example: On March 4, 2014, T execut
Page 602 and 603: Explanation: T’s motivation for b
Page 604 and 605: at issue. 2 Page The Law of Wills s
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Lawson exerted undue influence on S
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embodiment of the Will Contract New
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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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