Law of Wills, 2016A

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Problems 1. Jason, a seventy year old widower, wanted to have a sexual relationship with Ellen, his thirty year old secretary. Jason told Ellen that, if she had sex with him, he would leave her one million dollars in his will. Ellen and Jason went to his lawyer and added a codicil to his will leaving Ellen one million dollars. After Ellen made sure that the codicil was valid, she had a sexual relationship with Jason that lasted for about six months. Beverly, Jason’s wife, found out about the affair and threatened to divorce him. Jason did not want to divorce his wife because he did not have a prenuptial agreement, so he broke up with Ellen. The next day, he revoked the codicil leaving Ellen one million dollars. When Jason died, Ellen filed suit to get the million dollars. What is the possible outcome of the case? 2. Ted and his wife Marlene executed mutual wills. Marlene wanted to make sure that Jamie, her physically disabled daughter from a previous marriage was taken care of, so she had Ted sign a note promising to always take care of Jamie. Ted’s will stated, “I leave all of my property to Marlene.” Marlene’s will stated, “I leave all of my property to Ted.” Without Marlene’s knowledge, Ted revoked his will. Ted’s new will stated, “I leave half of my property to Marlene and half of my property to my brother, Tim.” Ted left the money to Tim, so that he could give it to Millie, Ted’s mistress. After Ted died, Marlene filed suit claiming that Ted had violated their contract not to revoke their mutual wills. What is the possible outcome of the case? 587
Chapter Fourteen: Mistakes and Curative Doctrines 14.1 Introduction Wills prepared by lawyers are just as susceptible to mistakes as holographic wills. This chapter examines two different types of mistakes---mistakes in drafting and errors in execution. Sometimes there are mistakes in the content of the will that cause the testator’s property to be distributed in a way that is inconsistent with what the testator would have wanted. In those types of cases, courts have to decide whether to fix the mistake or to enforce the plain language of the will. As a part of the decision-making process, courts have to determine if it is appropriate to consider extrinsic evidence. Traditionally, in order for a will to be valid, the testator had to strictly comply with the applicable wills statute, and almost any mistake in the execution process invalidated the will. For example, if a testator’s will had to be signed by two or more disinterested witnesses, a court would not probate a will that was signed by only one witness. This strict adherence to the requirements of the wills statute often resulted in an outcome that was clearly contrary to the testator’s intent. Consequently, some courts have applied curative doctrines to ensure that they carry out the testator’s intent. This chapter discusses the two main curative doctrines—substantial compliance and harmless error. 14.2 Drafting Errors Persons seeking to have wills reformed have faced a heavy burden. Courts are reluctant to rewrite the contents of wills because the testators are not present to state their intentions. One court stated: “Courts have no power to reform wills. Hypothetical or imaginary mistakes of testators cannot be corrected. Omissions cannot be supplied. Language cannot be modified to meet unforeseen changes in conditions. The only means for ascertaining the intent of the testator are the words written and the acts done by him.” Sanderson v. Norcross, 242 Mass. 43, 46, 136 N.E. 170 (1922) In re Gibb’s Estate, 111 N.W.2d 413 (Wis. 1961) FAIRCHILD, Justice. 1. The intention of the testators as determined from all the evidence. The evidence leads irresistibly to the conclusion that Mr. and Mrs. Gibbs intended legacies to respondent, and that the use of the middle initial ‘J.’ and the address of North 46th street resulted from some sort of mistake. Respondent testified that he met Mr. Gibbs about 1928. From 1930 to 1949 he was employed as superintendent of a steel warehouse where Mr. Gibbs was his superior. They worked in close contact. Until 1945 the business belonged to the Gibbs Steel Company. In that year the business was sold, but Mr. Gibbs stayed on for four years in a supervisory capacity. Respondent remained with the new company until 1960. After 1949 Mr. Gibbs occasionally visited the plant and saw the respondent when there. From 1935 to 1955 respondent took men occasionally to the Gibbs home 588
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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
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296, 297, which was a proceeding to
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void. In Fowler v. Stagner, supra,
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extent the subsequent will is incon
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For more than one hundred years, th
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2002. Elizabeth and Kelly are the b
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when they prepared their wills in 2
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execution, or its contents. Rather,
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secreted by some other person with
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As in Jackson and Bowery, it is dem
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Hurricane Katrina, a large number o
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LAW OF WILLS § 21.57 at 446 (rev.
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furniture in the house was left to
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intestate but held that “however
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evocation was based on her mistaken
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2. In 2001, Madison executed a will
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to treat this as a revocation is du
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Section 70 states: “If a person m
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Problems (1) If the testator had no
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It appears from the record that on
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The object of the statute is not to
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does the will contain anything indi
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Chapter Twelve: Non-Attested Wills
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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
Page 606 and 607: Lawson exerted undue influence on S
Page 608 and 609: embodiment of the Will Contract New
Page 612 and 613: to do necessary work about the plac
Page 614 and 615: The terms of the bequest exactly fi
Page 616 and 617: In the first paragraph she directed
Page 618 and 619: ‘The decedent may have thought he
Page 620 and 621: correction? May the law not untie t
Page 622 and 623: testamentary intent?; and (2) Does
Page 624 and 625: Russell’s will gives Betty a life
Page 626 and 627: affiants, with the intent to act as
Page 628 and 629: supra, 63 Wash.U.L.Q. at 60; Nelson
Page 630 and 631: decedent had not seen or had any co
Page 632 and 633: een executed in compliance with N.J
Page 634 and 635: final assent to the document. Clear
Page 636 and 637: Affirmed. In re Estate of Sky Dance
Page 638 and 639: Although a will was not executed in
Page 640 and 641: Chapter Fifteen: The Stale Will Pro
Page 642 and 643: Example 3: In 2013, Freda left a wi
Page 644 and 645: alike, with the share going to Fran
Page 646 and 647: cousins were dead when testator exe
Page 648 and 649: At the outset, we are not persuaded
Page 650 and 651: The court has followed this rule in
Page 652 and 653: ‘ITEM IV. My real estate located
Page 654 and 655: effect, (sic) when both description
Page 656 and 657: intended a half and half division o
Page 658 and 659: 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
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
Page 746 and 747:
presently constituted does not effe
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2. Should the settlor be permitted
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