Law of Wills, 2016A

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een the property of the daughter upon the decedent’s death. Even if the daughter returned the money to the estate, the estate would have to distribute the funds to the daughter as the survivor on the accounts. This court held that any challenge to an unauthorized withdrawal by the beneficiary on a joint and survivorship account must be made prior to the death of the depositor. After the depositor dies, all money allegedly misused by the beneficiary would be the property of the beneficiary anyway. Only challenges based upon fraud, duress, undue influence, or lack of capacity would be permitted after the death of the depositor. Appellant testified that decedent was aware that he would become the beneficiary of the CD accounts when she died. The record demonstrates that the decedent intended to give appellant a survivorship interest in CD account 49. Appellant placed the funds into a POD account immediately prior to decedent’s death. In this type of account, the depositor of the funds retains both the legal and equitable interest on the account. The beneficiary’s interest does not vest until the death of the owner. Friedrich v. Banc Ohio Natl. Bank (1984), 14 Ohio App.3d 247, 14 OBR 276, 470 N.E.2d 467. By the terms of CD account 63, decedent remained the sole owner of the funds. Appellant conferred no benefit upon himself by depositing the funds from CD account 49 into the POD account. His mother remained in control of the funds with appellant’s interest becoming vested only upon her death. There is no evidence in the record of fraud, duress, undue influence, or lack of mental capacity on the part of the decedent. Based upon In re Stowers, the challenge to the unauthorized withdrawal had to be made prior to the decedent’s death. No such challenge was made and is now waived. Further, because appellant did not benefit from the transfer of the funds from the CD to the POD account, the equitable result is that the intentions of the decedent were carried out and appellant retained his survivorship interest in the funds. Appellant’s two assignments of error are well taken. The judgment of the Trumbull County Court of Common Pleas, Probate Division, is reversed, and the cause is remanded for proceedings consistent with this opinion. Judgment reversed and cause remanded. Notes, Problems, and Questions 1. An agency or convenience account is one that is set up for a third party to have the power to draw on the account during the depositor’s life only for the convenience of the depositor. The third party does not receive the balance at the depositor’s death. The money left in the account is a part of the depositor’s probate estate. 2. The court in In re Totten, 71 N.E. 748 (N.Y. 1904) permitted a person to deposit money in a savings account for the benefit of a third party. For instance, A opens up a savings account and holds the money in trust for B. A retains the right to revoke the trust by withdrawing the money at any time during his life. B is only entitled to the amount in the account when A dies. The court treated this as an inter vivos trust instead of a testamentary trust. This type of savings account is referred to as a “poor man’s trust,” and is recognized in almost all states. 707
3. After suffering a stroke, Harriet had a difficult time handling her affairs. On March 11, 2011, Harriet put her grandson, Anthony’s name on her checking account at Local Bank, so that he could pay her bills. The account was funded with Harriet’s Social Security checks. On November 15, 2014, Harriet executed a will stating, “I leave my house to my grandson, Anthony. The rest of my estate is to be divided between my two children, Lisa and Kim.” Local Bank only had joint tenancy accounts available. On May 5, 2016, Harriet died. At the time of her death, Harriet had $71,000 in her Local Bank checking account. Who gets the $71,000? 16.5 Concurrently Owned Real Property Persons can avoid probate by owning real property as joint tenants or tenants by the entirety. Under a joint tenancy arrangement, each owner has the right to possess the entire property. When one of the owners dies, the surviving owner becomes the sole owner of the property. The decedent’s interest in the property disappears at death, so no probate is necessary because no interest passes to the survivor at death. A tenancy by the entirety is a joint tenancy arrangement that can only be entered into by persons in a marriage. A person who enters a joint tenancy arrangement cannot, during his or her lifetime, revoke the transfer and cancel the interest he or she gives to the other joint tenant. A joint tenant cannot devise his or her interest in the property by will. If a joint tenant wants someone other than the other joint tenant to receive his or her share at death, he or she must sever the joint tenancy during life. In order to sever a joint tenancy, the person must convert it to a tenancy in common. Consider the following example, A and B purchased a house as joint tenants. A would like to leave her interest in the property to C. In order to sever the joint tenancy, A transfers her interest in the property to D and has D transfer the property back to her. When D transfers the property back to A, A and B become tenants in common and A can leave the property to D in her will. 16.6 Inter Vivos Trusts Unlike an outright bequest, a trust is a device that is used to hold property for the benefit of the settlor and/or a third party. When the settlor dies, the beneficiary still does not receive the property outright. The trust property is distributed according to the terms of the trust. The settlor is the person who establishes the trust. The person who is intended to benefit from the trust is referred to as the beneficiary of the trust. The trustee administers the trust. The settlor may serve as the trustee. If the settlor does not serve as the trustee, a trustee may be appointed by the trust instrument or by the court. Trusts may be testamentary or inter vivos. An inter vivos trust is a trust established during the settlor’s lifetime. A testamentary trust is one that is created as a part of a will. The testamentary trust is not a will substitute because it is administered by the probate court. The testamentary trust is discussed in this author’s book on The Law of Trusts. An inter vivos trust may be created by a declaration of trust or a deed of trust. An inter vivos trust is created using a declaration of trust when the settlor declares that he or she holds certain property in trust. In this type of situation, the settlor is often one of the beneficiaries of the trust. For example, the settlor may create a trust by declaring, “I hold my farm in trust for the benefit of myself for life with the remainder to be held in trust for my son.” When an inter vivos trust is established using a deed of trust, the settlor transfers the property to another person as trustee. For instance, the settlor states, “I leave my estate in trust to John for the benefit of myself for life with the remainder to be held in trust for my son.” 708
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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
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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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Page 682 and 683: (1997), the antilapse statute, gove
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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 700 and 701: the testator’s lifetime, that gif
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 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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Law of Wills, 2016A

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