Law of Wills, 2016A

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handwriting “ ‘is exceedingly difficult,’ ” these statutes require the material provisions of holographic wills to be in the testator’s handwriting. (Ibid.) It was apparent to the Black court that the testator mistakenly believed she needed to use the printed language on the commercially printed will form regarding procedural matters. Our Supreme Court noted that “identification of the document as a will and herself as its maker ... are accomplished in the clearly expressed words of the document written by her own hand.” (Estate of Black, supra, 30 Cal.3d at p. 885). The court determined that the printed clause of the commercial will form referring to a personal representative was “patently irrelevant” to the substance-the dispositive provisions of her will. (Estate of Black, supra, 30 Cal.3d at p. 885). The court explained that the issue is not whether one mechanically intends to include printed material, but whether one intends to include printed material “ ‘because of its importance or materiality to the testamentary message.’ ” (Id., at pp. 885-886, italics added.) The inclusion of such printed procedural details does not invalidate an otherwise valid will. (Id., at pp. 886-887.) Whether a document should be admitted to probate as a holographic will depends on proof of its authorship and authenticity, and whether the words establish that it was intended to be the author’s last will and testament at the time she wrote it. (Estate of Black, supra, 30 Cal.3d at p. 888). Our high court explained that four questions are pertinent in evaluating whether a document should be invalidated as a holographic will due to printed language in the document: “Was the particular provision relevant to the substance of the will? Was it essential to the will’s validity? Did the testator intend to incorporate the provision? Would invalidation of the holograph defeat the testator’s intent?” (Estate of Black, supra, 30 Cal.3d at p. 885). Accordingly, in 1983, the year after our Supreme Court decided Black, our Legislature replaced Probate Code section 53 with Probate Code section 6111. Section 6111 provides, in pertinent part, that “(a) A will ... is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” In 1990, the Legislature added subdivision (c) which provides that “Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.” Probate Code section 6111.5 states that “[e]xtrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 [concerning formal wills] or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear.” There is no question that the handwriting on the document at issue is that of Dorothy Southworth, and that she signed and dated it. Unlike Black, however, the document is not a commercially printed will form. It is a donor card for a charity. It was not drafted to serve as a will. The card provides the option of informing NSAL that the donor has or intends to instruct one’s attorney to change his or her will. Furthermore, the printed language Southworth incorporated from the donor card does not evince her present testamentary intent. Instead of striking the material printed words which state “I am not taking action now, but my intention is,” she chose to incorporate those words with her handwritten 541
statement, “My entire estate is to be left to North Shore Animal League.” The material printed language together with her handwriting evince a future intent; not present testamentary intent. Although other extrinsic evidence, such as her letter to NSAL of September 4, 1987, and the supplemental Neptune form she signed on October 20, 1989, shows that Southworth desired to leave her estate to NSAL, neither the donor card at issue nor the handwriting on it substantially complies with Probate Code requirements for holographic wills. Although courts may consider statements made before and after a holographic will is made and the surrounding circumstances, evidence of present testamentary intent provided by the instrument at issue is paramount. (Estate of Wong (1995) 40 Cal.App.4 th 1198, 1204-1205 [47 Cal.Rptr.2d 707]; Estate of Archer (1987) 193 Cal.App.3d 238, 244 [239 Cal.Rptr. 137]; Estate of French (1964) 225 Cal.App.2d 9, 15-16 [36 Cal.Rptr. 908]; Prob. Code. §§ 6111, subd. (c), 6111.5.) Here, Southworth incorporated printed language stating that she was not taking any action when she executed it. It does not establish her testamentary intent at the time she executed it. It only states her intention to make a will in the future. The judgment is reversed. The parties are to bear their own costs. Problems 1. David wrote the following letter to his girlfriend: “The last three months with you have been the best of my life. If I died today, I would want you to have everything that I own. I love you.” David signed the letter “Your Heart.” After he finished the letter, David committed suicide. Is this a valid holographic will? 2. Vera sent a letter to her granddaughter Phyllis. The letter stated: “Dear Phyllis, Granny loves you very much. The doctor says that this leukemia will probably kill me. I know that you need help to finish college. I plan to go to the attorney next week to draft a will, so I can leave you $100,000. I will see you at Christmas.” Vera signed the letter, “Love Granny.” Vera died the day after she mailed the letter. Is this a valid holographic will? 3. Alma wrote the following on a note pad: “To Whom It May Concern, I am feeling really sad. I just celebrated my 70 th birthday and it is time to put my affairs in order. I do not have time or money to get a lawyer to make a will for me. Darlene told me that I could write a will myself. My estate consists of about $12,000 in cash and a mortgage-free house that is worth $230, 000. I would like to leave the house to my only child, Darrell. The $12,000 should be given to my church, Friendship Fellowship Church.” Alma signed the note. Is this a valid holographic will? 4. Paula was found dead in her bed. The following note was found on her night stand. “Peaches, ground beef, rice, apples, and light bulbs. Life is too short. When I go, I want my daughter Maxine to have my house. She has been such a good daughter. My daughter, Liza, should only get $1.00. All she wants to do is drink and gamble. Not with my money. The rest of my property and money should be split between my mother, Rosa and my sister, Clara. They need the money more than my children. Something to think about.” Paula signed the note. Is this a valid holographic will? 542
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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
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position, that the witnesses are si
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testator’s death.” Kay purporte
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will was properly executed. Id. The
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Viewing this evidence in a light mo
Page 514 and 515: 296, 297, which was a proceeding to
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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
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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
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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 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
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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
Page 606 and 607: Lawson exerted undue influence on S
Page 608 and 609: embodiment of the Will Contract New
Page 610 and 611: Problems 1. Jason, a seventy year o
Page 612 and 613: 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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Law of Wills, 2016A

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