Law of Wills, 2016A

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the testator’s lifetime, that gift may be considered to be adeemed by extinction. If the testator gives his or her child property of a similar nature to that devised to the child in the will, the law presumes that the gift was in satisfaction of the gift devised in the will. This presumption is rebuttable. Consider the following example. T leaves a will stating, “I leave $100,000 to my son, Steve, and the rest of my estate to my daughter, Bernice. Afterwards, T gives Steve a gift of $80,000. Then, T dies. Since there is a presumption that the later gift was in partial satisfaction of the will devise, Steve only takes $20,000 of T’s estate. In re Estate of Condon, 715 N.W.2d 770 (Iowa Ct. App. 2006) BEEGHLY, S.J. I. Background Facts & Proceedings Marguerite Condon executed a will in 1989 which made specific bequests to five charities. She also made a bequest of $10,000, to be divided by the five children of her deceased brother, Gregory Mowry. In addition, the will stated: I give and bequeath the sum of $10,000 to my niece and nephew, who are the children of my deceased sister, MARY ANN PARSONS, namely CHARLES PARSONS and VIRGINIA MALONEY, share and share alike; and in the event either of my niece or nephew predecease me, then the share of the one so dying shall go to the survivor. Marguerite’s son, Robert Condon, was made the residual beneficiary of the will. Charles died in 1992. During the months of June and July 1996, Marguerite wrote checks to the specific beneficiaries under the will, except for Charles, for the amount specified in the will. In the memo portion of the checks, she wrote “will payment.” One of the checks was written to Mary Virginia Maloney for $5,000. Robert testified Marguerite made these payments because “she wanted to have the satisfaction of knowing that she gave the money to the people she wanted to receive it.” Marguerite died on January 22, 2003. Robert was appointed as the executor of her estate. As the executor, Robert took the position that the specific beneficiaries had already been paid in 1996 the amount they would have received under the will, except that Mary was owed $5,000, which represented Charles’s share. The charitable beneficiaries and Mary Caldron, one of the children of Gregory, signed receipts and waivers, agreeing they were owed no additional sums. The other children of Gregory neither signed the waivers nor objected. The executor filed a final probate report which provided, “it appears that the devisees and beneficiaries shown in the Last Will & Testament have received their share of the bequest that was provided in the Last Will & Testament when the decedent made an advance payment in 1996....” Mary objected to the final report. She claimed that Marguerite’s will did not provide for advancements, and that the 1996 payments should not be considered as the payments that were due under the will because the 1996 payments were in fact gifts. A hearing on the final report was held. 677
The district court did not approve the final report and ordered the executor to file a revised report. The court determined that although Marguerite may have intended the 1996 payments to be charged against the bequests in her will, the language of the will did not make any reference to advancements. The court concluded the $5,000 check to Mary must be considered a gift, and that she was entitled to $10,000 from the estate under the terms of the will. The court stated: To allow the check to be considered as an advancement without any reference in the Will to possible advancements would be tantamount to treating the check as a codicil to the Will without proper execution and attestation required by Iowa law. The executor filed a motion to reconsider. The motion raises for the first time the doctrine of satisfaction. The district court discussed two cases, Heileman v. Dakan, 221 Iowa 344, 233 N.W. 542 (1930) and Rodgers v. Reinking, 205 Iowa 1311, 217 N.W. 441 (1928), and found they were distinguishable on the facts. The court denied the motion to reconsider. The executor now appeals. II. Standard of Review This case was tried in equity. See Iowa Code § 633.33 (2005). Our review is therefore de novo Iowa R.App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R.App. P. 6.14(6)(g). III. Advancements Generally, the rules concerning advancements apply only when a person dies intestate. See Iowa Code § 633.224; Harper v. Coad, 191 N.W.2d 682, 687 (Iowa 1971). When a decedent has a will, the language of the will controls the disposition of the estate. In re Estate of Francis, 204 Iowa 1237, 1242, 212 N.W. 306, 308 (1927). Whether advancements will be charged against a beneficiary’s share depends upon the language of the will. In re Estate of Morgan, 225 Iowa 746, 747, 281 N.W. 346, 347 (1938). Marguerite’s will did not provide that advance payments would be charged against a beneficiary’s share. Therefore, the doctrine of advancements does not apply. IV. Ademption by Satisfaction The executor raises the alternative theory of ademption by satisfaction. As noted above, the law regarding advancements generally only applies in cases of intestacy, “but the doctrine of ademption [by satisfaction], though strictly speaking applying only to personal property or to legacies, is resorted to carry out the apparent or presumed intention of a testator....” In re Estate of Mikkelsen, 202 Iowa 842, 846, 211 N.W. 254, 255 (1926). The term “ademption” generally applies to a specific legacy, while “satisfaction” is applied when the legacy is general. In re Estate of Keeler, 225 Iowa 1349, 1354, 282 N.W. 362, 365 (1938). A legacy is the testamentary disposition of personal property. Iowa Code § 633(25). The doctrine of ademption by satisfaction is explained as follows: When a general legacy is given of a sum of money without regard to any particular fund, and thereafter testator pays this legacy to the legatee or advances 678
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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
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signature, but part of an unfinishe
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emember the North Shore Animal Leag
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handwriting “ ‘is exceedingly d
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12.2.2 In the Testator’s Handwrit
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In Alexander’s Estate v. Hatcher,
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The right to make a will disposing
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I The facts—all of which are undi
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For example, in Estate of Baker, 59
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can come to no other conclusion wit
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5. Nellie and her sisters, Connie a
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I. Facts and Procedural History Thi
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eference into the Will. We reverse
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the completed form to his office pr
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(a) The Trustee shall pay the entir
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Even in those states in which such
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equest to ‘heirs’ or ‘childre
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wishes and intentions stated in the
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Fifth. It is clear that the judge f
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twenty to thirty minutes, during wh
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distinctly extraneous document, but
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Example: On March 4, 2014, T execut
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Explanation: T’s motivation for b
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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
Page 622 and 623:
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
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
Page 660 and 661: 2d 199, 214, 238 P.2d 966, 975). Th
Page 662 and 663: 131 P.2d 825; Parsons v. Bristol De
Page 664 and 665: 3. Patent vs. latent ambiguity: Acc
Page 666 and 667: a brother, Giuseppe, and a sister,
Page 668 and 669: Early in 2006, Cal Jr. and his wife
Page 670 and 671: 926, 280 P.3d 1110 (2012). Our prim
Page 672 and 673: esults from allowing the natural ob
Page 674 and 675: 15.3.2.1 Language of the Will M.S.A
Page 676 and 677: antilapse statutes have been constr
Page 678 and 679: decedent”). Thus, although the pr
Page 680 and 681: antilapse statute, words of survivo
Page 682 and 683: (1997), the antilapse statute, gove
Page 684 and 685: generally provided that the propert
Page 686 and 687: testator left all her property to h
Page 688 and 689: 15.4 Ademption The law considers a
Page 690 and 691: Sewell also obtained an appraisal o
Page 692 and 693: contravention of the power of attor
Page 694 and 695: the Fiduciaries [Sewell and Judkins
Page 696 and 697: thereby allowing the imposition of
Page 698 and 699: intentional interference with an in
Page 702 and 703: him even a small sum with intent to
Page 704 and 705: (c) If the devisee fails to survive
Page 706 and 707: When this lawsuit was filed, approx
Page 708 and 709: The doctrine of exoneration has bee
Page 710 and 711: e paid by the Estate, the debt secu
Page 712 and 713: 16.2.1 Changing the Beneficiary A l
Page 714 and 715: Accordingly, we affirm the order of
Page 716 and 717: his consent and without notice to h
Page 718 and 719: Egelhoff v. Egelhoff ex rel. Breine
Page 720 and 721: would survive,’ as well as to the
Page 722 and 723: een adopted by nearly every State-i
Page 724 and 725: Motor Co., 529 U.S. 861, 873, 120 S
Page 726 and 727: purpose with federalism’s need to
Page 728 and 729: and were included in the inventory
Page 730 and 731: een the property of the daughter up
Page 732 and 733: Moreover, the settlor may use a dee
Page 734 and 735: On final submission after evidence
Page 736 and 737: evidentiary material which has been
Page 738 and 739: that immediately thereafter the tru
Page 740 and 741: 2. Arthur placed $100,000 worth of
Page 742 and 743: The co-executors and the trustee do
Page 744 and 745: not a will construction case, we ar
Page 746 and 747: presently constituted does not effe
Page 748: 2. Should the settlor be permitted
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