Law of Wills, 2016A

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Appeal dismissed, with costs to respondents. 2.5.3 Laughing Heirs Laughing heirs are relatives that are so remote from the decedent that they may laugh if they discovered that he or she died. These persons take if the decedent dies without surviving spouse, children, parents, siblings, nieces, nephews, aunts, uncles, grandparents etc. The problem with remote heirs is that it takes a lot of time and resources to discover and locate them. As I have previously stated, the primary objective of the intestacy system is to carry out the decedent’s presumed intent. Because that is the goal it probably does not make sense for the court to track down distant relatives with whom the decedent did not have any type of relationship. Section 2- 103(4) of the Uniform Probate Code sought to eliminate the remote heir problem by limiting inheritance to descendants of the decedent, parents and their descendants, and grandparents and collateral relatives descended from grandparents. The majority of jurisdictions have adopted this approach. 2.5.4 Escheat Uniform Probate Code § 2-105 No Taker. If there is no taker under the provisions of this Article, the intestate estate passes to the [state]. Once the decedent’s blood line runs out, his or her estate goes to the state if he or she dies intestate. Very few estates escheat to the state because people tend to keep an eye on relatives who have money and/or property. Another reason why the state seldom gets the estate is that the Internet is full of companies that specialize in locating missing heirs. The companies will locate missing heirs in exchange for a percentage of the estate. 2.5.6 Advancements The intestacy system is meant to distribute property that the decedent did not dispense in a validly executed will. The advancement doctrine comes into play when the decedent gives an heir property prior to his or her death. The advancements doctrine is based on the theory that a parent intends to treat all of his or children in the same way. Thus, if a parent gave a child a significant lifetime gift of real or personal property, the common law imposed a presumption that the parent intended an advancement. The child who received the gift had the burden of overcoming the presumption in order to avoid having the gift counted against his or her share of the estate. The common law doctrine of advancements still exists, but it has been codified. Under most of the current statutes, the court presumes that the lifetime gift was not mean to be an advancement. Some states have followed the Uniform Probate approach requiring some type of writing indicating that an advancement was intended. 61
Tankesley v. Thompson, 469 S.E.2d 853 (Ga. App. Ct. 1996) POPE, Presiding Judge. Richard Tankesley, Robert Tankesley, William Tankesley and John Tankesley are the adult sons of Stella Lee Kays, who died intestate on July 24, 1992. During the administration of Kays’ estate, Richard and the court-appointed administrator, Mary Thompson, asserted that Kays had advanced approximately $70,000 to Robert during the last two years of her life. Robert denied this assertion. After extensive discovery and several hearings on the matter, the probate court ruled that the $70,000 disbursed to Robert was not an advancement, but rather constituted loans or investments made to Robert and/or businesses he had started-primarily Southern Broasted Foods, Inc. (SBF). Concluding that the probate court did not err in reaching its determination, we affirm. “An advancement is any provision made by a parent out of his estate, for and accepted by a child, either in money or property, during the parent’s lifetime, over and above the obligation of the parent for maintenance and education.” OCGA § 53-4-50(a). In this state, when a parent dies intestate, a substantial gift of money or property from the parent to his or her child during the parent’s lifetime is ordinarily presumed to be an advancement. See Bowen v. Holland, 184 Ga. 718, 720(1), 193 S.E. 233 (1937); Neal v. Neal, 153 Ga. 44, 45(3), 111 S.E. 387 (1922). This presumption, however, is rebuttable Id. The relevant inquiry in cases such as this is the decedent’s intent at the time of the transactions in question. Berry v. Berry, 208 Ga. 285, 289(2), 290, 66 S.E.2d 336 (1951). The determination as to the decedent’s intent is to be made by the finder of fact-either the jury, or a judge in a case tried without a jury. See Smith v. Varner, 130 Ga. App. 484, 203 S.E.2d 717 (1973). In the instant case, all of the money in question was disbursed in the form of numerous checks written by Kays. All of the checks except one were either payable to SBF or named SBF or another business entity in the memo portion thereof. Many of the checks also included the notation “investment” or “loan.” Robert testified by affidavit that at the time Kays wrote each check, she indicated that the money was an investment. Robert further testified that at various times during her life, Kays expressed her intent that at the time of her death her estate should be divided equally between her four children, regardless of any gifts she previously may have given to any particular child. The affidavits of William and John corroborate that this was Kays’ intent, as do the various wills, though not valid, that Kays executed during her life. Additionally, Kays’ attorney testified by affidavit that as far as he was aware, “at the time of her death, [Kays] contemplated that her estate, as it existed at the time of her death, would be divided equally between her four sons, notwithstanding any gifts she may have made to them during her lifetime.” The record also shows that Kays was a shrewd business woman who often invested in other businesses, and there is some evidence that she expected a return on her investment in SBF. Based on the above evidence, we hold that the probate court, as the sole factfinder and judge of witness credibility in this case, did not err in concluding that Robert had met his burden of rebutting the presumption that the disbursements constituted advancements. The probate court was authorized to conclude that Robert had demonstrated with clear and satisfactory evidence that Kays’ intent when she made the disbursements was that they be treated as loans or investments rather than advancements. Accordingly, we affirm the probate court’s ruling. Judgment affirmed. 62
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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
Page 34 and 35: eveals to Lawyer that he has just e
Page 36 and 37: meet with Jake Leno and report back
Page 38 and 39: panel’s finding that his testimon
Page 40 and 41: witness, because the hearing panel
Page 42 and 43: incompetent by a court without both
Page 44 and 45: Whether, under New Hampshire law an
Page 46 and 47: uildings used in the family busines
Page 48 and 49: Creating a duty, even under the unf
Page 50 and 51: Chapter Two: Intestacy System (Basi
Page 52 and 53: children for purposes of the distri
Page 54 and 55: Lauren, a widow, had two children,
Page 56 and 57: nominated himself as the sole perso
Page 58 and 59: (1) to the issue of the decedent; i
Page 60 and 61: stirpes,” “classic per stirpes,
Page 62 and 63: E, will receive her 1/3 share of th
Page 64 and 65: Scenario Two: Stephen dies intestat
Page 66 and 67: Thomas A. Fleming was born out of w
Page 68 and 69: In our view, the 1947 statutes coul
Page 70 and 71: asked [R.W.] how long has he and hi
Page 72 and 73: Following the fact finding hearing
Page 74 and 75: eturned to M.W. She agreed to a psy
Page 76 and 77: Dr. Dyer testified that in his opin
Page 78 and 79: U.S. 971, 101 S.Ct. 2049, 68 L.Ed.
Page 80 and 81: intestacy succession rules. Affirme
Page 82 and 83: Explanation: Willis estate will be
Page 86 and 87: Uniform Probate Code § 2-109 (a) I
Page 88 and 89: Chapter Three: Intestacy System (Su
Page 90 and 91: 5. In America, there are variations
Page 92 and 93: On February 6, 1981, Leslie died in
Page 94 and 95: property to Edith. By such action,
Page 96 and 97: eversed the separate property deter
Page 98 and 99: legislative direction to the contra
Page 100 and 101: V. Virtually every court which has
Page 102 and 103: Joan last saw Charles in the New Yo
Page 104 and 105: Helen’s petition came on for a no
Page 106 and 107: valid, the court shall declare such
Page 108 and 109: their claim to an interest in the e
Page 110 and 111: In Estate of Ricci (1962) 201 Cal.A
Page 112 and 113: which were hers by separate ownersh
Page 114 and 115: Laikola v. Engineered Concrete, 277
Page 116 and 117: the party alleging a common-law mar
Page 118 and 119: 3.2.3 Same-Sex Spouse Under the int
Page 120 and 121: There is no question that Frances
Page 122 and 123: Bell Joyner (collectively “defend
Page 124 and 125: 2. What was the constructive abando
Page 126 and 127: on New York Evidence, Section 956,
Page 128 and 129: each will, Vencie and Melba gave
Page 130 and 131: days. These provisions constitute a
Page 132 and 133: Determination of Death 30 (1982), t
Page 134 and 135:
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
Page 394 and 395:
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
Page 422 and 423:
The objectors argue that because Li
Page 424 and 425:
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
Page 452 and 453:
The policy of the law favors testac
Page 454 and 455:
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
Page 478 and 479:
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
Page 484 and 485:
Duress: In the context of contested
Page 486 and 487:
The motion for summary judgment wit
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cause of action against the third p
Page 490 and 491:
intended to induce [Mr.] Schilling
Page 492 and 493:
Does Florida law, statutory or othe
Page 494 and 495:
Class Discussion Tool (Answer this
Page 496 and 497:
(a) Is written, created and stored
Page 498 and 499:
Steve Godfrey (“Deceased”) prep
Page 500 and 501:
Defendant made a properly supported
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who presided at the hearing and hea
Page 504 and 505:
Later in the afternoon Fred and his
Page 506 and 507:
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
Page 512 and 513:
Viewing this evidence in a light mo
Page 514 and 515:
296, 297, which was a proceeding to
Page 516 and 517:
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
Page 522 and 523:
2002. Elizabeth and Kelly are the b
Page 524 and 525:
when they prepared their wills in 2
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execution, or its contents. Rather,
Page 528 and 529:
secreted by some other person with
Page 530 and 531:
As in Jackson and Bowery, it is dem
Page 532 and 533:
Hurricane Katrina, a large number o
Page 534 and 535:
LAW OF WILLS § 21.57 at 446 (rev.
Page 536 and 537:
furniture in the house was left to
Page 538 and 539:
intestate but held that “however
Page 540 and 541:
evocation was based on her mistaken
Page 542 and 543:
2. In 2001, Madison executed a will
Page 544 and 545:
to treat this as a revocation is du
Page 546 and 547:
Section 70 states: “If a person m
Page 548 and 549:
Problems (1) If the testator had no
Page 550 and 551:
It appears from the record that on
Page 552 and 553:
The object of the statute is not to
Page 554 and 555:
does the will contain anything indi
Page 556 and 557:
Chapter Twelve: Non-Attested Wills
Page 558 and 559:
when it appears thereby that the de
Page 560 and 561:
signature, but part of an unfinishe
Page 562 and 563:
emember the North Shore Animal Leag
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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
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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
Page 588 and 589:
Even in those states in which such
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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
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twenty to thirty minutes, during wh
Page 598 and 599:
distinctly extraneous document, but
Page 600 and 601:
Example: On March 4, 2014, T execut
Page 602 and 603:
Explanation: T’s motivation for b
Page 604 and 605:
at issue. 2 Page The Law of Wills s
Page 606 and 607:
Lawson exerted undue influence on S
Page 608 and 609:
embodiment of the Will Contract New
Page 610 and 611:
Problems 1. Jason, a seventy year o
Page 612 and 613:
to do necessary work about the plac
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
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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
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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
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,
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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
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
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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
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e paid by the Estate, the debt secu
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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
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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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