Law of Wills, 2016A

Notes, Problems, and Questions
1. What would be the distribution of Donald’s estate under the English per stirpes system? Under
the Modern per stripes system? Which outcome do you think Donald would have preferred?
2. Let’s change the facts so that Donald was survived by his brothers, Stewart and Frederick. What
would be the distribution of Donald’s estate under the English per stirpes system? Under the
Modern per stirpes system?
3. Let’s change the facts so that Donald was survived by only his brother, Stewart. What would be
the distribution of Donald’s estate under the English per stirpes system? Under the Modern per
stirpes system?
4. Let’s change the facts so that all three of Donald’s brothers predeceased him, but Ted died leaving
a son, Marvin. Thus, Donald would have been survived by his nieces, Susan and Mary, and his greatnephew,
Marvin. What would be the distribution of Donald’s estate under the English per stirpes
system? Under the Modern per stirpes system?
5. These are the facts of the case: Donald had three brothers, Stewart, Frederick and Robert. Robert
did not have any children. Stewart had three children, Susan, Anna and Mary. Frederick had two
children, Ted and John. Susan, Anna, Mary, Ted and John did not have any children. Stewart,
Frederick and Robert predeceased Donald. Anna and John also died prior to Donald. Let’s change
the facts to include the following. Susan had a son, Glover. Mary had two children, Bonita and
Henry. John has four children, Gail, Samuel, Pauline and Jason. Ted had one child, Kevin. Donald is
only survived by John and Mary. What would be the distribution of Donald’s estate under the
English per stirpes system? Under the Modern per stirpes system?
6. In the Evans case, the court relied on the 1969 version of the Uniform Probate Code. According
to the court, the 1969 version of the UPC was a form of the Modern per stirpes system. For reasons
that will be discussed in the next section, the UPC changed its approached with the 1990
amendments from per capita by representation to per capita at each generation. After you review the
UPC section, come back to the Evans case and determine how Donald’s estate would have been
distributed had the court applied the 1990 version of the UPC?
2.4.4 Per capita at each generation (1990 Uniform Probate Code)
The majority of jurisdictions have adopted some form of the Uniform Probate Code (UPC).
Thus, key provisions of that Code will be discussed throughout this text. If you are studying in a
jurisdiction that has not adopted the UPC, it may still be helpful to use parts of the Code for
comparative purposes.
A shortcoming of the English and the Modern per stirpes approaches is that descendants
who are equally related to the decedent may take unequal shares of the estates. For instance, some of
the decedent’s grandchildren may receive a greater share of the estate than others. Consider a brief
example. A has three daughters, B, C and D. B has one child, E. C has two children F and G. D has
three children H, I and J. A dies survived by D. The following distribution would occur under either
per stirpes system: A’s estate will be divided into 3 shares. D will receive 1/3 of the estate. B’s child,
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