Spring 2012Guzman

I. IntroductionA. Property

1. Defined: Legal relationship b/w and/or among persons and/or entities with respect to a thing.2. 6 Property Rights

a) Possessb) Usec) Consume and/or Destroyd) Excludee) Enjoyment of Fruits and Profitsf) Transfer

B. Transfers1. Life Transfers – inter vivos

a) Once title has been transferred gift is irrevocable.b) Title (rights) transfers when all 3 elements are met.

(1) Intent (donative)

(a) Voluntary(b) Present intent is required to make a present transfer.

(2) Delivery

(a) Actual Delivery (physical delivery of the thing).(b) Constructive Delivery (keys that operate the car).(c) Symbolic Delivery (title representing the underlying thing – deed to property).

(3) Acceptance

2. Death-Time Transfers

a) Testate – decedent died with a will

(1) Elements of a Will:

(a) Testamentary Intent – present intent to effectuate a future transfer at death.(b) Writing – the will itself (it exists as a writing).(c) Acceptance.

(2) Rights transfer at death (testator beneficiary).(3) No present rights are conveyed with a will. There are no future interests created.

b) Intestate – decedent died without a will

(1) Distribution and Descent statute.

DESCRIPTOR WITHOUT A WILL WITH A WILL

1. Person who died (generic) Decedent Decedent

2. Person who died (specific) Intestate Testator

3. Property of Decedent Intestate Estate Testate Estate

4. Real Property Transfer Descent Devise

5. Real Property Recipient Heir Devisee

6. Personal Property Transfer Distribute Bequest (sometimes called a “legacy”)

7. Personal Property Recipient Distributee or Next-of-Kin Legatee (sometimes called a “bequeathee”)

8. Real or Personal Property Recipient (Generic) Beneficiary Beneficiary

9. Person Selected to Oversee Decedent’s Estate (Generic)

Personal Representative (P.R.) Personal Representative (P.R.)

10. Person Selected to Oversee Decedent’s Estate (Specific)

Administrator of the Estate (figure out the intestate scheme)

Executor of the Estate (execute the wishes)

11. Document Granting right to P.R. to so act on behalf of estate

Letters of Administration Letters Testamentory

12. Process of wrapping up estateProbate (generic)Administer (specific)

Probate (generic)Probate (specific)

Intestacy

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I. General Rules and Purpose: Intestate SuccessionA. Intestate Statutes – identify who takes a decedent’s probate property:

1. If there is no valid will (total intestacy); or

2. To the extent that the will does not dispose of all of the property (partial intestacy).

B. Survival: you have to survive the decedent to take.1. Promotes efficiency – best use of the property by those who are living.

2. Dead people don’t have rights.

3. Probably comports w/ the intent of most people who do have a will (intends takers to be alive at the time of taking).

C. Status: generally, only “family” takes.1. Spouse: barring a valid prenuptial agreement, spouses always take some % of the decedent’s estate.

2. Descendants: after the spouse, descendants trump ancestors & collaterals

a) Stock/Root : vertical category denotes lineage.

(1) Picture your family tree. You are the trunk. The branches are your ancestors or ascendants (sometimes you want them to leaf you alone);

(2) The roots are your issue or descendants (living children + predeceased children w/ living descendants).

(3) *When a root dies and there is no way for that line to continue then it is no longer counted.

b) Degree : horizontal category denoting number of generations.c) REPRESENTATION : issue of a more remote degree from decedent can inherit if their ancestor (same root but closer degree to decedent) cannot inherit. (e.g. is dead; see Rule 1), even when there are other issue of the decedent in a closer degree but a different root.

3. Ancestors/Collaterals:

a) Collateral Kindred: all persons who are related by blood to the decedent but who are not descendants or ancestors.

(1) First-Line Collaterals: Descendants of the decedent’s parents, other than the decedent and the decedent’s descendants.

(2) Second-Line Collaterals: Descendants of the decedent’s grandparents, other than the decedent’s parents and their descendants.

b) Ancestors: those persons the decedent directly descends (parents, grandparents, etc.).

II. Schemes for Spouse, Descendants, Ancestors/Collaterals (Unit I Handout 2)

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A. Spouse

1. UPC § 2-102: very protective of surviving spouse (generally takes more under UPC than OK law).

2. OK – 84 O.S. § 213(B)(1):

a) JIP RULE : property acquired during the marriage, except that which has been received through gift, descent, or devise, by one of the spouses is joint property.b) Rebuttable PRESUMPTION : all property in the decedent’s estate is presumed JiP.

B. Descendants – Representational Schemes1. Pure Per Stirpes:

a) Treats each line of descendants equally. b) Property is divided into as many shares as there are living children of the designated person (e.g., X – the decedent) and deceased children (of X) who have descendants living. (Go to the child generation No Matter What!)c) The children of each deceased descendant represent their deceased parent and are moved into their parent’s position beginning at the first generation below the designated person. (Allocate a share to each root and divide down, if necessary.)

2. Modified Per Stirpes:

a) Look first to see whether any children survived the decedent. If so, the distribution is identical to that under Pure Per Stirpes.b) If not, then the estate is divided equally (per capita) at the first generation in which there are living takers, which is usually the generation of the decedent’s grandchildren. c) RULE : The decedent’s estate is divided into shares at the generational level nearest to the decedent in which one or more descendants of the decedent are alive.

3. Per Capita (current UPC):

a) The initial division of shares is made at the level where one or more descendants are alive (as under modified per stirpes), but the shares of deceased persons on that level are treated as one pot and are dropped down and divided equally among the representatives on the next generational level.

C. Ancestors/Collaterals1. Parentelic System

a) Parentela : a set or subset of a person/persons and his/her or their descendants.b) RULE : Lowest parentela wins;

(1) Parentelic heads trump others w/in the same parentela.

(2) Distribute the decedent’s entire estate w/in closest parentela.

2. Civil Law (a/k/a “Degree of Relationship”)

a) Degree of Relationship: add the number of steps (degrees/generations) from the decedent up to the common ancestor shared w/ the survivor/potential heir, and the number of steps down to that survivor/potential heir.

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(1) Table of Consanguinity (p. 93).

b) RULE : Lowest number wins;

(1) Distribute everything to ancestor/collateral w/ lowest number.

(2) If there is more than 1 w/ the same “low number” then they all take equally.

3. Modified Civil Law

a) As b/w lowest number (civil law) “ties” then closest parentela wins.

D. Attack Plan:1. Consider whether there is a spouse, and if so how much it takes, then…

2. If that amount is less than 100% of the estate, figure where the remainder goes by looking to descendants and descendant rules.

a) Never look up or over to ancestors or collaterals if you can look down to descendants.b) If no descendants, then look to apply the Parentelic/Civil Law/Modified Civil Law schemes in order to determine qualified takers.

E. OK – 84 O.S. §§ 213(B)(2)-(4):1. Parentelic System to the 3rd Degree.

2. Civil Law “degrees of kinship.”

3. Then escheats to the states.

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FACTS [X survived by:] RULE [how much to spouse?] EGS500K 2M

1. UPC § 2-102

a. Spouse only§ 2-102(1)(A)Entire Estate 500K / 2 million

b. Spouse + all joint issue w/ no “other” issue of either decedent or surviving spouse

§ 2-102(1)(B)Entire Estate

500K / 2 million

c. Spouse + any issue of decedent only (surviving spouse’s step children) irrespective of whether there are also joint issue or issue of surviving spouse

§ 2-102(4)

First $150k plus ½ balance of intestate estate

325K / 1,075,000

d. Spouse + any issue of surviving spouse only (decedent’s steps) and joint issue. (Note: need joint issue to kick rule in–why?)

§ 2-102(3)First $225k plus ½ balance of intestate estate

362,500K / 1,112,500

e. Spouse + parent(s)§ 2-102(2)First $300k plus ¾ remaining balance of intestate estate

450K / 1,575,000

2. Ok Ti. 84 § 213(B)

a. Spouse only Entire Estate 500K / 2 million

b. Spouse + all joint issue1/2 of entire intestate estate 250K / 1 million

c. Spouse + any issue of decedent only (surviving spouse’s step children)

1/2 of JIP (joint industry property) plus undivided equal share of non-JIP"

250K / 1 million

d. Spouse + any issue of surviving spouse only (decedent’s steps)

No Special Rule – look to the surrounding circumstances to see which other rules apply

N/A

e. Spouse + parent/siblings All JIP plus 1/3 non-JIP 500K / 2 million

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III. Altering the Intestacy SchemeA. WILL: write one in order to opt out of the intestacy scheme.

B. TRANSFER OF AN EXPECTANCY: Not enforceable at law; only enforceable in equity if the transaction, viewed in its entirety, is deemed to be fair.

1. Assignment (a/k/a “transfer of the expectancy”): Heir apparent (or a person presently named under a will) has an expectancy interest (e.g., if X dies intestate and leaves real property).

a) Hope (expectation) of receiving something in the future.

(1) Expectancy Interest ≠ Property Right.

(2) Does not receive anything until the decedent actually dies.

b) Assignment creates the buyer’s right to take directly.

2. Release : Heir apparent (or person presently named under a will) may go to X (the source) and request portion of his potential inheritance and effectuate the release of the rest of his inheritance.

C. NEGATIVE WILL: attempt/desire to remove someone from beneficiary status under that will.

1. Accomplished By : leaving all property to someone else (disposition of entire estate) + Residuary Clause (anything that may be left over is to go to some designated person or entity); or can simply state “A is to receive nothing.”

2. Public Policy : permits the creation of negative wills

a) However, there is a limit on how much a spouse may be cut out.b) Every state (except LA) allows for children to be completely cut out of a will.

3. Negative Wills + Intestacy Scheme : Does cutting someone out from a will also remove him from taking under the relevant intestacy scheme?

a) TRADITIONAL/COMMON-LAW/OK RULE: negative wills have zero affect on any property passing through intestacy.b) MODERN/UPC § 2-101(b) RULE: negative will may have an effect on intestate succession upon evidence of clear intent. Treats those who are negatively disinherited in a will as having predeceased the decedent. In effect, having disclaimed inheritance for any property passing through intestacy.

D. DOCTRINE OF ADVANCES – lifetime (inter vivos) gift that reduces an intestate share. (Intestacy doctrine only)

1. All lifetime gifts are not advances. Some are “pure” gifts. The classification depends on the intent of the donor.

2. Advances are not uncommon, but are not necessarily the norm.

a) People that tend to consider advances are usually those who have estate plans (so the doctrine of advances would not apply).b) Often times the law requires that advances must be demonstrated in writing (providing donor’s clear intent to make an advance, and not a pure gift).

3. COMMON LAW : any lifetime gift by the decedent to a child was presumed to be an advancement (in effect, a prepayment of the child’s intestate share).

a) Burden of Proof: child had the burden of establishing that the transfer was intended as an absolute gift that was not to be counted against the child’s share of the estate.

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b) Based on the assumption that the parent would want an equal distribution of assets among the children and that true equality can be reached only if lifetime gifts by the parent are taken into account in determining the amount of the equal shares.c) If the recipient does not survive the decedent the advancement is still taken into account in determining the recipient’s descendant’s shares.

4. UPC § 2-109 : lifetime transfers are presumed to be gifts, not advancements.

a) Requires a contemporaneous writing by the decedent declaring transfer was an advance, or a writing by the recipient acknowledging transfer was an advance.

(1) Writing/Evidence survives the decedent in order to carry out his wishes + avoid familial dispute.

(2) Reduces time and money spent on litigation over disputes of possible advances.

(3) Intestacy schemes are meant to represent the general intent of a State’s citizens.

(4) writing requirement coincides w/ the theme of carrying out the decedent’s intent.

b) Recipient predeceases decedent then the advancement is not taken into account in determining the share of the recipient’s descendants.

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5. OK vs. UPC: What is an advance?

a) Writing Requirement:

(1) OK – doesn't have to be contemporaneous.

(2) UPC – contemporaneous by decedent, but not by heir.

b) Who can be an advancee?

(1) OK – any child or other lineal descendant.

(2) UPC – Anyone who ends up an actual heir (spouses, collaterals, and lineal descendants).

c) Recipient predeceases decedent?

(1) OK – predeceasing advancee’s descendants are charged w/ that advance.

(2) UPC – predeceasing advancee’s descendants are not charged w/ that advance.

6. 4 Steps to Advances:

a) Hotchpot = decedent’s estate + value of any qualified advances (QA).

(1) QA = those that were actually intended to be advances.

b) Distribute the hotchpot under the relevant intestacy scheme.c) Subtract any QA from the relevant advancee’s share.

(1) If the amount of the advance exceeds the amount of the advancee’s share disregard both the advance and the advancee and START OVER.

d) Check your work.

(1) Total should amount to the value of the decedent’s entire estate.

(2) Adding transfers back in and taking the advancements back out.

7. If someone ends up an heir, and this person is the ONLY heir, the lifetime gifts that may be considered an advance are mute b/c this person is the ONLY heir (so it doesn’t matter anyway).

E. DISCLAIMER: a devisee or an heir’s refusal to accept a death-time transfer.1. Reasons people disclaim:

a) Tax purposes.b) Avoid creditors.c) Don’t want to accept property that is going to cost more to own than what the property is actually worth.d) Sustain or ensure eligibility of federal or state aid programs.

2. COMMON LAW: distinguished b/w heir (intestate transfer) and devisee (testate transfer).

a) Heir refused his inheritance + common law rule applied = treated as though the heir had received the intestate share and then made a taxable gift to the persons who took by reason of the RENUNCIATION.

(1) Rationale : there must always be someone seised of the land who was liable for the feudal obligations.

b) Devisee could refuse to accept the devise, thereby preventing title from passing to the devisee, and resulting in DISCLAIMED property (no ta consequences). A gift, whether inter vivos or by will, requires donee’s acceptance.

3. State law determines ownership + Federal law determines tax consequences.

a) Uniform Fraudulent Conveyance Act (UFCA) & Uniform Fraudulent Transfer Act (UFTA)

(1) Cannot make a fraudulent conveyance or transfer (usually one that is made to avoid creditors).

(2) Normally, a disclaimer would not trigger a fraudulent conveyance or a fraudulent transfer.

(3) However, disclaimers can avoid creditors b/c a disclaimer is not a conveyance or transfer from the debtor to takers-by-representation, rather it is a conveyance/transfer from the decedent to the takers-by-representation..

b) UPC §§ 2-1105 and 2-1106 or 84 O.S. §§ 22-26.

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4. Drye v. United States (U.S. 1999)

a) Facts: owed $325K in back taxes to the federal government. His inheritance was $250K. He tried to disclaim his inheritance in order for it to pass to his daughter who then placed the funds in a “spendthrift trust” in an attempt to shield the money from the Government. She made herself and her parents the beneficiaries of the trust. b) Reasoning: Disclaiming heir inevitably exercises dominion over the property disclaimed.

(1) He determines who will receive the property – himself If he does not disclaim, a known other if he does disclaim.

(2) This power to channel the estate’s assets warrants the conclusion that the disclaiming heir holds “property” or a “right to property” subject to the Government’s liens.

c) Holding: (Drye) had the unqualified right to receive the entire value of his mother’s estate (less administrative expenses), or to channel that that value to his daughter. The control rein he held under state law rendered the inheritance “property” or “rights to property” belonging to him w/in the meaning of [the Internal Revenue Code] and subject to the federal tax liens that sparked this controversy. (No escaping the Tax Man).

F. FAMILY SETTLEMENT: family members all get together to effectuate a particular outcome. It is not the same as a disclaimer (transfer(s) made would be from the qualified takers and not from the decedent). Treated like a 2-Step Transaction:

1. Step 1: Transfer from O Takers;

2. Step 2: Transfer from Takers X [someone else] = qualified gift and subject to gift-tax consequences.

3. *Note: if all qualified takers disclaim in order to effectuate the desired result avoidance of gift tax.

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NEGATIVE WILLS

COMMON LAW OKLAHOMA UPC § 2-101

Effect on Intestate Estate No effect on property passing through intestacy.

No effect on property passing through intestacy.

May have an effect on intestate succession upon evidence of clear intent.

Treated as if disclaimed.

ADVANCEMENTS

Lifetime transfer by decedent to [qualified advancee]

COMMON LAW OKLAHOMA 84 O.S. §§ 223-227

UPC § 2-109

Advancee Any child. Any child or other lineal descendant.

Any person who ends up being an actual heir.

Presumption Advancement. Gift. Gift.

Burden and Writing Requirement

On child to establish transfer was intended as an absolute gift and not counted against his share of the estate.

Presumption only rebutted by Decedent : a writing

from the decedent; or

Recipient : acknowledging transfer was

Presumption only rebutted by Decedent :

contemporaneous writing; or

Recipient : writing acknowledging transfer was an advance

Predeceased Recipient Advancee’s descendant’s are charged w/ the advance.

Advancee’s descendant’s are charged w/ the advance.

Advancee’s descendant’s are not charged w/ the advance.

DISCLAIMERS

A devisee or heir’s refusal to accept a death-time transfer.

COMMON LAW Renunciation

UPC §§ 2-1105 AND 2-1106 84 O.S. §§ 22-26

Federal Tax Code

Decedent died Intestate – Heirs

Heir cannot prevent title from passing to him.

Renunciation:Heir may renounce inheritance.Treated as though the heir received the intestate share and then made a taxable gift to the next intestate successor.

Heirs and devisees are not treated differently.

Disclaimant is treated as having died before the decedent or before the time of distribution.

Property does not pass to the disclaimant, and disclaimant makes no transfer of it.

Specified Time Limit (OK):½ States & Federal Tax Code (UFTA/UFCA): requires a disclaimer to be made w/in 9 months after interest is created or after the donee reaches the age of 21 (whichever is later).

½ of States have no time limit in which a party may disclaim its interest.In these jurisdictions, a party may effectively disclaim under State law and still be liable for federal tax consequences if beyond the 9th month requirement.

Decedent died Testate – Devisees

Disclaim:Devisee can prevent title from passing to him by refusing to accept the devise.*Avoids gift tax.A gift, whether lifetime or death-time, requires acceptance by the donee.

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IV. Status A. Who is Deemed a “SURVIVOR”?

1. Death Order Differences (Unit 1 Handout 3)

a) Uniform Determination of Death Act (UDDA): 2 Standards of Death (either/or)

(1) Total & Irreversible cessation of cardiopulmonary functioning (no heartbeat + no breath).

(2) Total & Irreversible cessation of whole brain functioning (“brain dead”).

b) COMMON LAW: requires a determination that one party survived the other.

(1) Presumptions:

(a) Younger of the two decedents survived (older predeceased younger).

(b) Gender – would have longer life expectancy than men presume that woman survived man.

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(c) Healthier party survived.

(2) Story #1: In close cases – the wealthier party is generally going to win b/c it can afford the better hired guns and present the better story.

c) OK/USDA (‘40/’53): death order matters.

(1) If there is no sufficient evidence that one survived the other by even an instant, and

(2) The governing instrument, if any, does not otherwise provide, then

(3) Distribute each person’s property as though he/she had survived the other.

d) UPC/USDA (’93): death order matters.

(1) If there is no clear and convincing evidence that one survived the other for 120 hours (i.e., 5 days), and

(2) [no escheat nor exceptions in instrument in different §], then

(3) Distribute each person’s property as though he/she survived the other.

2. Janus v. Tarasewicz (1985) – CB p. 80

a) Facts: dispute b/w H’s mother and W’s father over death order (life insurance policy $100K + whatever else in respective estates). b) Issue: Must the determination of legal death be made in accordance w/ the usual and customary standards of medical practice?c) Holding (Rule of Law): Yes, the determination of legal death must be made in accordance w/ the usual and customary standards of medical practice.d) Reasoning: no dispute that H died in both a cardiopulmonary sense and a brain death sense when his vital signs disappeared on route to the hospital and were never reestablished.

(1) Hospital personnel were able to reestablish W’s spontaneous blood pressure and pulse. Efforts to preserve her life were continued after more intensive efforts on H had failed. according to medical expert W’s condition did not amount to brain death until after H had already died.

e) Procedural Posture: Once the trial court agrees w/ a party, then the Appellate Court is merely reviewing for abuse of discretion and is very difficult to overturn the finder of facts determination regarding survival.

(1) Appealing on a question of fact rather than a question of law.

(2) Tough hurdle to clear.

f) Avoided application of the Uniform Simultaneous Death Act b/c trial court determined there was sufficient evidence that Q survived H by an instant.g) If USDA had applied:

(1) H’s insurance policy would have gone to his mother. The rest of H’s estate would have also gone to his mother (b/c there were no children).

(2) W’s property treated as though W survived H W’s property would have all gone to her father.

(3) Distribution would have occurred simultaneously.

3. Questions of Death Order Generally Arise in Intestate Succession:

a) Probably b/c well-drafted wills have clauses that go around this type of litigation (backup plans in the event that a spouse dies w/in a certain period of time of the decedent, e.g., 30, 60, or 90 days is fairly standard).b) Requiring more than 90 days for survival puts the estate in limbo (not distributed) = averse to public policy.

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WHO IS A SURVIVOR? – DETERMINING DEATH ORDER

COMMON LAW UNIF. SIMULTANEOUS DEATH ACT (‘40/‘53)

[OK; at issue in Janus]

AMENDED UNIF. SIMULTANEOUS DEATH ACT (‘93)

[SIMILAR PROVISION IN UPC]

Requires determination that one party survived the other.

If the title to property or its devolution depends upon the priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously and there is no other provision in the will, trust agreement, deed, contract of insurance or other governing instrument for distribution of the property different from the provisions of this section .

If title to property, the devolution of property, the right to elect an interest in property, or the right to exempt property, homestead or family allowance depends upon an individual’s survivorship of the death of another individual, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is

Presumptions when death order is not clear:1. Age – younger of the two

decedents survived (older predeceased).

2. Gender – women have longer life expectancy than men presume woman survived man

3. Health – healthier person survived.

Otherwise stated: IF1. death order matters, AND2. there is no suff. evidence (i.e.

preponderance)that 1 survived other by even an instant, AND

3. the governing instrument, if any, does not otherwise provide, THEN

4. distribute each person’s

Otherwise stated: IF1. death order matters, AND2. there is no C&C evidence that

one survived the other for 120 hours (i.e. 5 days), AND

3. [no escheat nor exceptions in instrument in different §], THEN

4. distribute each person’s property as though s/he had

Distribution of Property

Must determine a survivor and then distribute accordingly.

Distribution of Property

Intestacy: as though the intestate survived and he heir predeceased

Insurance Proceeds: As though the insured survived and beneficiary predeceased.

Joint Tenants w/ Right of Survivorship: ½ is distributed thru A’s estate as though A survived B, and ½ is distributed through B’s estate as though B survived A. *Simultaneous death prevents operation of

Distribution of Property

Intestacy: as though the intestate survived and he heir predeceased

Insurance Proceeds: As though the insured survived and beneficiary predeceased.

Joint Tenants w/ Right of Survivorship: ½ is distributed thru A’s estate as though A survived B, and ½ is distributed through B’s estate as though B survived A. *Simultaneous

B. Who is deemed a “SLAYER”? (Unit 1 Handout 4)

1. GENERAL RULE – Bar to Succession: If you are convicted of killing the decedent then you cannot take from that decedent’s estate.

a) 3-Prong Inquiry:

(1) Who is barred?

(a) Bar just slayer or whole blood line?

(2) By what degree of proof?

(a) Civil – preponderance of the evidence.

(b) Criminal – beyond a reasonable doubt.

(3) Require an actual conviction?

(a) Does pleading guilty have same result as an actual conviction?

b) Treat the slayer (and sometimes his whole line of descent) as though he predeceased the decedent.

2. In re Estate of Mahoney (S. Ct. of Vt., 1966)

a) Facts: W was convicted of manslaughter for killing H.

(1) H died intestate.

(2) Probate Court found W’s conviction of manslaughter disabled W from taking any part of H’s estate Estate ordered distributed to his mother and father

b) Issue: May a party convicted of the intentional killing of another, inherit property from the decedent? (No slayer statute at the time of this dispute.)c) Holding (Rule of Law): No, a conviction of murder or voluntary manslaughter disables the party convicted from inheriting any property from the decedent.d) Reasoning – 3 Basic (possible) Approaches:

(1) APPROACH #1 : Legal title passes and slayer keeps (slayer status is irrelevant). Slayer status is something for the legislature to speak on. Only apply intestacy statute of descent.

(2) APPROACH #2 : Legal title will not pass to the slayer b/c of the equitable principle that no one should be permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong or crime.

(a) Statutes be damned – Judicially engraft a status0based exception of person who kills decedent.

(b) Slayer is treated as though she has predeceased the decedent.

(c) Direct Approach

(3) APPROACH #3 : Legal title passes to the slayer but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent. Court chose this approach

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(a) In-b/w/Indirect Approach

(b) Legal title passed, but it was subject to a constructive trust.

(i) Constructive Trust = “formula through which the conscience of equity finds expression.”

(ii) Sole duty of the constructive trust trustee is to convey the legal title to the beneficiaries of the trust. When that is done, the trust is destroyed b/c the bifurcation is no longer in existence.

(c) Slayer is required to pass title to the would-be heirs.

e) Disposition: remanded to allow H’s parents to take to court of equity b/c probate court only has authority to follow statute.

(1) W was convicted of manslaughter, not murder. Court said the relevant inquiry should rest on whether the act was voluntary or involuntary in determining W’s potential status as a “slayer.”

(2) Civil litigation requires only a preponderance of the evidence.

3. UPC § 2-803: provides that the killer is treated as having disclaimed the property; under disclaimer statute ,§ 2-1106, the disclaimant is treated as having “died immediately before the time of distribution.”

4. OK “SLAYER” STATUTE – 84 O.S. § 231: Person causing death does not inherit nor benefit by insurance of decedent.

a) Although it appears from the statutory language that a conviction is required, case law states otherwise in civil litigation the burden of proof is only preponderance of the evidence.b) Shall not inherit nor receive any interest from their estate (intestate)(testate); also applies to personal as well as real property.c) Problems w/ the statute: death benefits clause seems to allow for intestacy rules instead of other things.

(1) HYPO : Mr. J is killed by Mrs. J, she has a life insurance policy + she is primary beneficiary + secondary beneficiary are the siblings, and Mr. J’s mother is still alive. Who takes? The MOTHER! Why? B/c the intestacy scheme takes over. Doesn’t seem like the decedent’s intent.

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SLAYER STATUTES

OKLAHOMA 84 O.S. § 231

UPC § 2-803 and § 2-1106

Who is a “Slayer”? Defined by the laws of this state/ the laws of any other state/foreign country

Person having taken, caused, or procured another to take, the life of an individual.

A person guilty of felonious and intentional killing and

Excludes accidental manslaughter killing.

Criminal ConvictionBurden of Proof: beyond a reasonable doubt.

Effect on subsequent Civil Litigation.

Not required

Person who is convicted of (1st of 2nd degree) murder, or 1st degree manslaughter.

Conviction satisfies burden under P. Court in determination person is a “slayer” and barred from taking from estate.

Not required

Killing can be "felonious and intentional," whether or not the killer has actually been convicted in a criminal prosecution.

Criminal conviction for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section.

Criminal Acquittal

Effect on subsequent Civil Litigation.Burden of Proof: preponderance of the evidence.

Acquittal on criminal charges of killing decedent does not per se entitle person to take under decedent’s estate.

Acquittal is not conclusive on issue of whether or not beneficiary took, or caused to be taken, life of insured in such manner as to constitute felonious, intentional, unjustifiable homicide, and that issue may be litigated in subsequent civil proceeding to determine rights of claimants to decedent's estate.

Does not preclude the acquitted individual from being regarded as the decedent's killer for purposes of this section.

Different considerations as well as a different burden of proof enter into the finding of criminal accountability in the criminal prosecution.

Example: on a murder charge may be found not guilty and acquitted claims as an heir, devisee, or beneficiary of a revocable beneficiary designation, etc. of the decedent probate court may find that, under a preponderance of the evidence standard, he or she would be found criminally accountable for the felonious and intentional killing of the decedent and thus be barred under this section from sharing in the affected property.

Effect on Distribution/Disposition of Property

Slayer forfeits benefits of decedent’s estate

Slayer’s share is distributed as if he had predeceased his own innocent descendants.[84 O.S. 213(B) – descent and distribution by representation.]

Slayer forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance.

If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his [or her] intestate share.[§ 2-1106. Disclaimant is treated as having “died immediately before the time of distribution.”]

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C. Who is deemed a “SPOUSE”? (Unit 1 Handout 5)1. Whether an individual can inherit as a “spouse” is usually a question of each state’s domestic relations law.

a) Most states require a valid marriage between people of different genders.b) Legally Married – “Spouse” is an heir in every jurisdiction (except GA).

2. Not legally married {[A] + B A died intestate should B inherit?} (Unit 1 Handout 5).

a) Same-Sex Couples.b) Opposite-Sex Couple.

3. Non-Traditional “Spousal” Relationships (Unit 1 Handout 5(a))

a) Monogamous vs. Polygamous Marriageb) Cousins

D. Who is deemed a “Child”? (Unit 1 Handout 6)1. Adoption – 3 Basic Schemes:

a) SCHEME #1: In some states, as in Hall, an adopted child inherits only from adoptive parents and their relatives.b) SCHEME #2: In others, an adopted child inherits from both adoptive parents and genetic parents and their relatives.c) SCHEME #3: In others, as provided in UPC § 2-114(b) (1990), an adopted child inherits from adoptive relatives and also from genetic relatives if the child is adopted by a stepparent.

2. Adoption and the Interpretation of Wills & Trusts

a) Historical Overview: Enactment of Adoption Laws (19th Century) + Common Law

(1) Stranger-to-the-Adoption Rule : The adopted child is presumptively barred, whatever genetic word is used, except when the donor is the adoptive parent

(2) Exceptions to the Rule : Adoption became more commonplace and accepted Courts carved out exceptions:

(3) An adopted child might be permitted to take if adopted before, but not after, the T’s death.

(a) Some courts drew distinctions between a gift to “A’s children” and a gift to “A’s issue” or the “heirs of A’s body.”

(b) Children – presumptively included A’s adopted children.

(c) Issue + heirs of body – biological connotation and did not include adopted children.

b) Now: presumption that minor adopted by A is presumptively included in a gift by T to the “children,” “issue,” “descendants,” or “heirs” of A.

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(1) Presumption yields to a contrary expression of intent by the donor.

(2) Law of many states is likely to have been developed by changing judicial decisions and statutes over the 20th c., and since the change may not be retroactive, whether an adopted child is included may depend on what the law was at the T’s death (e.g., 1935).

3. Hall v. Vallandingham (Ct. of Special Appeals of Md., 1988) – CB p. 97

a) Facts: After Earl died, his children were adopted by Jim, his wife’s new husband. Then Earl’s brother (William) died childless, unmarried, and intestate. His sole heirs were surviving brothers and sisters and the children of predeceased siblings. Earl’s children alleged they were entitled to their distributive share.b) Lower Court held children were not entitled to inherit from William b/c they have been adopted by Jim.c) Holding (Rule of Law): An adopted child is no longer considered a child of either natural parent and loses on adoption all rights of inheritance from his natural parents. d) Reasoning: statute eliminates the adopted child’s right to inherit from the natural parent it concomitantly abrogated the right to inherit through the natural parent by way of representation.

(1) “The Legislature giveth, and the Legislature taketh away.”

(2) Policy against dual-taking.

4. R.3D OF PROPERTY § 2.5(2)(C): Wills and Other Donative Transfers

a) Ensures 2 lines of inheritance.b) Children in Hall would not have inherited.

5. OK – 10 O.S. § 7505-6.5 (Adoption Statute – descent & distribution):

a) Statute does not explicitly cut the rights o the child to inherit from and through its biological parents (those rights remain intact).b) Lines of inheritance going down to the child = 4 (adopted parents + biological parents).c) Impediment to exercising all 4 lines of inheritance:

(1) Closed adoptions (children don’t know who their biological parents are).

(2) Estate is open and closed w/o child ever knowing identity, or closed before child finds out identity.

d) Only 2 lines of inheritance going up from the child (adopted parents).

6. Virtual (“Equitable”) Adoption: an oral contract to adopt a child not executed in accordance with statutory requirements, giving rise to rights of inheritance in the child, upon the death of the promisor. MOST JURISDICTIONS RECOGNIZE A FORM OF EQUITABLE ADOPTION.O’Neal v. Wilkes, (Ga. Sup. Ct., 1994).

a) Facts: Hattie O’Neal’s () mother died in 1957, when she was 8 yo. ’s father never recognized her as his daughter (this makes a nonmarital child). lived w/ maternal aunt for 4 years taken to live w/ paternal aunt (Page). Page sent to live w/ T (T).

(1) lived w/ T > 10 years.

(2) T referred to as his “daughter” and ’s children as his “grandchildren.”

(3) T died intestate

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(a) claimed she was entitled to inherit under theory of “equitable adoption.” (property she would have been entitled to had she been T’s statutorily adopted daughter.)

(b) Executor of Estate = Wilkes () contested ’s claim and was granted jnov on the grounds that Page had no legal authority to enter into an adoption contract with T.

b) Holding (Rule of Law): A contract to adopt may not be specifically enforced unless the contract was entered into by a person with the legal authority to consent to the adoption.c) Reasoning: Consent to an adoption may only be given by a child’s parent or legal guardian.

(1) ’s Aunt Page was neither ’s legal guardian or parent; merely taking over familial obligation in caring for .

(2) B/c no legal relationship existed b/w and Aunt Page = Aunt Page could not consent to ’s adoption by T.

(3) adoption contract = INVALID and ’s claim for equitable adoption failed.

d) Dissent: Equity treats as done that which ought to be done.

(1) By insisting that a person be appointed as a legal guardian before agreeing to a contract to adopt, the majority is harming the very person the requirement is designed to protect – the child.

7. Adult Adoption

a) Most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult.b) Adoption of one’s lover:

(1) Not permitted (NY): Sexual relationship held to b incompatible with a parent-child relationship.

(2) Permitted (DE – expressly rejected NY’s rule): to prevent claims against their estate by collateral relatives.

c) Adoption of an adult may be useful in preventing a will contest by denying standing to the potential contestants.

(1) Only persons who have standing to challenge the validity of a will are those who would take if the will were denied probate.

(2) To gain standing to challenge the will, the decedent’s collateral relatives must first overturn the adoption.

(3) SAME-SEX RELATIONSHIP one might adopt partner in order to remove potential standing of others in the event the will is set aside (this is premised on the adoption being determined to be valid) it is now generally the underlying adoption that is challenged, instead of the will.

d) Justice Holmes: adoption for the purpose of preventing a will contest was “perfectly proper.”

8. Adoption of an Adult Who is Also a Marital Partner – Minary v. Citizens Fidelity Bank and Trust Co. (Ct. of App. of Ky., 1967) – CB p. 103

a) Facts: Amelia Minary’s will created a trust (testamentary trust), the income of which was to be paid to her husband and her three sons (beneficiaries). Upon the death of the last surviving beneficiary (contingent remainder), the property which Amelia had placed in the trust (corpus) was to be distributed “to [her] then-surviving heirs, according to the laws of descent and distribution then in force in Kentucky, (remainderman) and, if no such heirs, then to the First Christian Church.” Amelia died, followed by the death of her husband and two of sons. Alfred (last son) adopted his wife before he died. Wife then demanded distribution of corpus in the trust to her and claimed that the adoption resulted in her becoming an heir of Amelia.

(1) Beneficiaries (hold equitable title): Husband + 3 Sons

(a) Equitable Life Estate (equitable life tenants).

(b) Indicates that the life tenants under the trust have rights to income (interest + distribution = right of use = right to the interest generated by the funds of the trust, but not the principal equity in the trust rights to any property generated by the use of the trust fund).

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(2) Trustee (holds legal title)

(3) Remainderman (contingent remainder)

(a) Decedent’s then surviving heirs according to the laws of descent and distribution then in force in KY (sometime in the future when the last of the life tenants dies).

(b) Distribution of the corpus to the remainderman = termination of the trust (b/c there is nothing let in the trust and no one left to benefit from the trust).

b) Holding (Rule of Law): One who adopts a spouse or other adult cannot thereby make the adoptee an heir to an estate created by an existing testamentary instrument executed by an ancestor of the adoptee.c) Contrast Minery to Graybill: “to A for life, then to A’s heirs

(1) RULE IN SHELLEY’S CASE: O to B for life, then to B’s heirs.

(a) The conveyance purports to create the following interests: life estate in B, remainder in B's heirs. The remainder in B's heirs must be a contingent remainder b/c B's heirs are unascertained, the condition to be satisfied in order for the remainder to vest presumably being the death of B.

(b) The Rule in Shelley's Case operates on this transaction to defeat the intent of the grantor and change the interests that the grantor purported to give to B and (separately) to his 'heirs'.

(c) After application of the Rule, the state of the title is now life estate in B, vested remainder in B in fee simple absolute.

(d) B/c B has been conveyed two successive freehold estates, a second and independent doctrine, the Doctrine of Merger, operates on the life estate and remainder to turn B's interest into a fee simple absolute.

(e) Court finally reads the transaction as "O conveys to B and his heirs." That is, B takes a fee simple absolute.

d) In-Class Example: Goodman + manslaughter charge (Spend-thirft Trust)

(1) Goodman is the guy who is charged w/ manslaughter (drunk driving + killed other driver) put girlfriend’s name on a trust he had set up for his children. Trust was established years earlier.

9. Nonmarital Children

a) 4/10 children born in the US = nonmarital children.

(1) 53% of children born to women under 30 = nonmarital.

b) COMMON LAW : nonmarital children could not inherit from anyone.

(1) Could not inherit from or through their ancestors.

(2) Eventually nonmarital children were allowed to take from and their maternal bloodline (still not allowed to take from/through biological father’s bloodline).

(3) Supreme Court: applied intermediate scrutiny requiring State’s important interest: evidentiary problems in determining paternity (protecting the integrity of the intestacy process)

c) NOW : Children are entitled to inherit from and through biological mother, and are entitled to inherit from and through their biological father upon proof of paternity.

(1) No proof of maternity is required.

(2) 84 O.S. § 215. Inheritance by and from illegitimate child (4 ways to establish paternity, 3 of which are in control of the father)

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(a) Previous holding: paternity proceeding must be brought while the alleged father is still alive.

(b) Current holding: Actions may be brought posthumously.

10. Posthumous Children – ALWAYS nonmarital children.

a) GENERAL RULE: child considered “in being” at conception and not at birth if that child is in gestation at the relevant party’s death and born alive thereafter.b) Traditional Posthumous Scenario: death of father child is born.

11. Modern Twist – Reproductive Technology (Unit I Handout 6):

a) Now it is possible for a child to be conceived after the father or the mother (or both) has died (conception could occur after the death of both the biological contributors).b) Meaning of “in gestation”:

(1) Post-conception = along the way of development (even if frozen/suspended).

(2) In utero.

c) Woodward v. Comm’r of SS (S.Ct. of Mass, 2002)

(1) Facts: W sought survivor benefits for herself and her children, who were conceived using her deceased H’s previously preserved sperm.

(2) Issue: whether the 2 infant boys are “descendants” and “issue” for purposes of such provisions although they were conceived several years after the death of James.

(3) Holding (Rule of Law): Yes, a child resulting from posthumous reproduction may enjoy the inheritance rights of “issue” under the intestacy statute where there is a genetic relationship b/w child and the decedent and the decedent consented to the posthumous conception and to the support of any resulting child.

(4) Reasoning: Although the intestacy statute does not limit the class of posthumous children to those in utero at the time of the decedent’s death, posthumous reproduction may at time conflict w/ the purpose of the intestacy law and implicate other interests.

d) In re Martin B. (Surrogate’s Court, New York County, 2008)

(1) Facts: Martin B. (Grantor - G) created 7 trust agreements in 1969, naming himself as the life income beneficiary of all of the trusts. G had a wife and 2 sons, Lindsay and James. James died childless shortly before G died. 3 years after T’s death James’ wife conceived a son, J.M. by in vitro fertilization w/ James’ frozen sperm. 2 year later she conceived another son, Warren, by the same method. Trustees of G’s trust petitioned the court to determine if these 2 children should be considered “issue” or “descendants” who were eligible for distribution from the trust.

(2) Holding (Rule of Law): When a governing instrument is silent, post-conceived children should be accorded the same rights as children who are conceived prior to their father’s death.

(3) Reasoning:Legislatures and the court try to balance competing interest:

(a) Certainty and finality are critical to the public interests in the orderly administration of estates.

(b) On the other hand, the human desire to have children, albeit by biotechnology, deserves respect, as do the rights of the children born as a result of such scientific advances.

(4) Intent:

(a) Cannot determine G’s intent about James’ posthumous children.

(b) But the absence of specific intent should not necessarily preclude a determination that such children are members of the class of issue,

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(c) G’s Intent as gleaned from a reasoning of the trust agreements = CONTROLLING factor in determining whether the beneficiaries of the trust.

(5) Trust Instruments: provide that, upon the death of the G’s wife, the trust would benefit his sons and their families equally.

(a) Conclusion: G intended intended all members of his bloodline to receive their shares.

(b) J.M. and Warren are “issue” and “descendants” for all purposes of these trusts.

12. Big Question: Should we permit children who are posthumously conceived and posthumously born to take w/in testate/intestate succession or trusts?

a) Issue is framed in terms of the a “default rule.”

(1) Don’t need to rely on a default rule if intentions are expressed clearly in a will or trust (or both).

(2) Risk/Loss in the event that will/trust not created expressly intentions on point the default rule becomes critical.

b) Jurisdictional Differences – recognizing posthumously conceived child’s inheritance rights.

(1) Uniform Parentage Act (few states) – the parent consented to the posthumous conception in writing.

(2) R.3d of Property – the child is born w/in a reasonable time after the decedent’s death in circumstances indicating that the decedent would have approved of the child’s right to inherit.

(3) UPC § 2-120 (2008):

(a) the deceased parent consented to the posthumous conception in a signed writing or consent is otherwise proved by clear and conniving evidence, and

(b) the child is either living, in utero w/in 36 months, or born w/in 45 months after the distribution date.

(4) *CA requires notification of possibility of posthumous children.

E. Who is deemed a “PARENT”? (Unit I Handout 7)1. Difference b/w qualitative relationships (e.g., unmarried couple) and horizontal relationships (e.g., parent/child):

a) Limited/closed set for vertical relationships: the issue becomes whether someone gets to stay in the set (most people are usually going to have only 2 parents).

(1) Tend to start w/ a common denominator (2 parents).

b) Open set for horizontal relationships: lots of people can claim to have “committed relationship” status.

(1) Less efficient than horizontal relationships.

2. 84 O.S. § 215: nonmarital children must prove paternity to take from and through their biological father. In the event the child dies, the child’s estate automatically goes up to the mother, unless…

a) Father married mother.b) Judicial determination of paternity.c) Father held himself out publicly as the biological father of the child.d) Father signed the birth certificate.

3. Unit II Handout 7 – under Oklahoma law, the father would have taken ½ of the deceased child’s estate.

4. Equal Protection Concern: nonmarital fathers are required to behave differently than nonmarital mothers.

a) Unfair, old, entrenched distinction b/w notions of mothers and fathers.b) If we care about the quality of parentage make the statutes applicable to all parents (not just nonmarital fathers).

ADOPTED CHILDREN

PARENT/CHILD RELATIONSHIP

OKLAHOMA 10 O.S. § 7505-6.5

UPC §§ 2-118, 2-119, 2-114(b)

Parent-Child Relationship Between

A.After the final decree of adoption is

§ 2-118(a):A parent-child relationship exists between an adoptee and the

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Adoptee and Adopted Parent(s).

entered: the relation of parent and child and all

the rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between the adopted child and the adoptive parents of the child and the kindred of the adoptive parents.

From the date of the final decree of adoption, the child shall be entitled to inherit real and personal property from and through the adoptive parents in accordance with the statutes of descent and distribution.

The adoptive parents shall be entitled to inherit real and personal property from and through the child in accordance with said statutes

adoptee’s adoptive parent or parents.

§ 2-114(b):An Adoptee is the child of his [or her] adopting parent or parents.

Parent-Child Relationship between Adoptee and Genetic Parents

B.After a final decree of adoption is entered, the biological parents of the adopted child: shall be relieved of all parental

responsibilities for said child and shall have no rights over the adopted child or to the property of the child by descent and distribution.

UNLESS genetic parent is the spouse of the adoptive parent or is the adoptive parent.

§ 2-114(b)An Adoptee is not [the child] of his [or her] natural parents

§ 2-119(a) a parent-child relationship does not exist between an adoptee and the adoptee’s genetic parents.EXCEPTIONS:A parent-child relationship exists for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent:

(b)(2) by an individual who is adopted by the spouse of either genetic parent and the other genetic parent.(c) an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic

parent(d) an individual who is adopted after the death of both genetic parents,

(e) Child of asst./repro. or gest/child who is later adopted by other(s):parents under 2-120/1 are treated as the child’s genetic parent or parents for the purpose of this section.

Step-Child Adopted by Step-Parent

“Stepparent Exception”

No stepparent exception. § 2-114(b): individual who is adopted by his stepparent (the spouse of the custodial natural parent) becomes part of the adopting stepparent's family for inheritance purposes but also continues to be part of the family of the custodial natural parent.Adoptee & Noncustodial Natural Parent (and that parent's family): Adoptee and his descendants continue to have a right of inheritance from and through that noncustodial natural parent, but that noncustodial natural parent and its family do not have a right to inherit from or through the Adoptee

§ 2-119(b): A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and:(1) the genetic parent whose spouse adopted the individual; and(2) the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through the other genetic parent

Potential Lines of Inheritance

Lines DOWN to Child: rights to inherit from/through biological parents + rights to inherit from/though adoptive parents = 4 Lines (potentially).

Lines UP from Child: rights to inherit from/through child for only adoptive parents (or bio. parent + stepparent) = 2 Lines.

Lines DOWN to Child: rights to inherit from/through adoptive parents = 2 Lines + exceptions (stepparent) = potentially 3 Lines.

Lines UP from Child: rights to inherit from/through only for only adoptive parents (or bio. parent + stepparent) = 2 Lines.

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V. Final Thought: Are intestacy schemes prescriptive or descriptive?A. Probably both.

B. Function to reflect and reinforce values via intestacy schemes.1. HOWEVER, can be argued that these schemes are no longer reflective or descriptive of majoritarian principles where there is a disconnect/non-congruence occurs = indicative that revisions to these schemes are necessary.

2. Remember, laws tend to change slower than values/norms.

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Testate Succession

I. Execution: Make a Valid Will (Testamentary Intent + Formalities)A. Questions to Ask in Will-Execution Situations:

1. Does the document strictly comply with the elements for an attested will?

2. If not, does your jurisdiction recognize holographic wills?

3. If so, would the document work as a holograph?

4. If not (or if holographs are not recognized), do the facts show “substantial compliance” with the statutory elements?

5. If not, should the will be allowed under a harmless error approach?

II. Testamentary Intent – Types of Wills (Unit II Handout II)A. Nuncupative (Oral – spoken word) Will

1. Not great vitality today (approx. 17 jurisdictions recognize)

2. Rarely used + rarely litigated: most people don’t even know they exist.

3. Every jurisdiction that does recognize nuncupative wills there is a cap as to how much may be conveyed in an oral will.

4. OK: $1000 and only personal property) + must be in current military service and in fear of imminent death.

B. Holographic (Unattested) Will: 1. Handwritten, unwitnessed will (considered unreliable in some jurisdictions, only about ½ of all jurisdictions recognize holographic wills – all UPC states recognize them, and so does OK).

2. 84 O.S. § 54: entirely handwritten, dated, and signed by the T.

a) In theory, cuts down on fraud and forgery b/c entire document is created at the hands of the T.b) More holographic wills are probably accepted under the UPC due to lack of date requirement (fewer formalities required).

3. UPC § 2-502(b): signature and material portions of the document are in T’s handwriting.

a) Immaterial portions may be typed.

C. Attested (Witnessed) Will – statute typically includes:1. Writing

2. Signed [at the end?]

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3. By T or Another

4. Attested in T’s Presence

5. By Competent Witnesses

6. Optional: Attestation Clauses & Self-Proving Affidavits

III. Formalities – Attested WillsA. Function of Formalities

1. Purpose of Formalities:

a) Evidentiary - (protect court, decedent, and would-be beneficiaries).b) Cautionary (ritual/seriousness function) – finality.c) Protective (fraud/duress/coercion) – protects testator and beneficiaries.d) Channeling – promotes uniformity (protects everyone).

2. Comparing OK & UPC (Unit II Handout II)

a) 84 O.S. § 55:b) UPC § 2-502(a):

B. Writing, Signature, and Attestation

1. Meaning of “WRITING ” and Video or Electronic Wills

a) Easily satisfied b/c usually written or typed on one or more sheets of paper.b) Does not have to be on paper – only has to be in the form of a reasonably permanent record of the markings that make up the will.

(1) Voice print (videotape, or otherwise) does not satisfy the requirement.

(2) Videotape may be admitted into evidence to prove due execution.

c) UPC: does not take a clear position one or the other as to whether a recording could constitute a “document or writing” sufficient to be admitted under the harmless error rule.

(1) HARMLESS ERROR RULE: reform doctrine that allows defectively executed document to be admitted to probate if there is clear and convincing evidence that it was intended to be a will.

2. Meaning of “SIGNATURE ” in Will Execution

a) Evidentiary Purpose – finality (not a draft) & genuineness:

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b) Signature by the T w/ his full name at the end of the document will almost always satisfy the signature requirement.c) Problem #1: Signature by mark, w/ assistance, or by another.d) Problem #2: Order of signing.

(1) Generally, T must sign or acknowledge the will before the witnesses attest.

(2) If all sign “as part of a single (or continuous) transaction, the exact order of signing is not critical.”

(3) Issue: what is a single or continuous transaction?

e) Problem #3: Subscription and addition after signature – handwritten line following T’s signature:

(1) If the handwritten line was added after the T signed the will, the will would be admitted to probate, but the line would be ineffective as a subsequent unexecuted codicil.

(2) If added before the T signed his name, it would probably be admitted to probate.

f) Problem #4: Delayed attestation: how long a witness may delay signing a will w/o compromising the validity of the will?

(1) UPC § 2-502(a)(3)(A): witness must sign “w/in a reasonable time.”

(2) Could be satisfied by a signature after the T’s death.

(3) NY: witness must attest w/in 30 days.

(4) CA: witness must sign “during the T’s lifetime,” but authorizes the application of the harmless error rule.

3. Meaning of “PRESENCE ” in Will Execution

a) LINE-OF-SIGHT TEST: requirement that the witnesses sign in the presence of the T is only satisfied if the T is capable of seeing the witnesses in the act of signing.

(1) T does not actually have to see the witnesses sign but must be able to see them were the T to look.

(2) Exception for a blind T: test becomes whether the T would have been able to see the witnesses sign from where the T was standing or sitting if the T had the power of sight.

b) CONSCIOUS-PRESENCE TEST: the witness is in the presence of the T if the T, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing. c) UPC § 2-502(a): dispenses altogether w/ the requirement that the witnesses sign in the T’s presence.

C. Strict Compliance Jurisdictions

1. In re Goffman (1969)

a) Facts: H and both witnesses were not present together when H acknowledges his signature.

(1) W claims failure of strict compliance (intent + lack of proper formalities)

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(2) In this jurisdiction at the time if the will is held to be invalid estate falls under intestacy scheme = wife takes all.

b) Holding (Rule of Law): failure to comply w/ statutory requirement of witnesses being present resulted in the will being invalid.

2. Stevens v. Casdorph (W. Va. S. Ct. of App., 1998) – CB p. 229

a) Facts: T was brought to the bank by the Casdorphs () to execute his will. T was not in the presence of the witnesses when he signed his will and the witnesses were not in the presence of each other when they signed as subscribing witnesses to his will. sought to have the will set aside, claiming it had not been properly executed.b) Holding (Rule of Law): Yes, to be valid, a will must have been signed by the T in the presence of two competent witnesses, who then must sign the will in the presence of the T and each other.

(1) Holding is good for statutory legitimacy and efficiency b/c it functions as an impediment to litigation.

c) Reasoning: Very Narrow Exception to Strict Compliance (Wade): A will is still valid if a witness acknowledges her signature on the will in the physical presence of both T and the other subscribing witness.

(1) The facts of this case do not fit into the Wade Exception b/c

(2) T did not sign in the presence of either witness.

(3) Neither witness signed in the presence of T or in the presence of each other.

(4) Neither witness acknowledged her signature on the will in T’s presence or the other subscribing witness.

(5) the will was not properly executed = INVALID.

d) Dissent: Inflexible, technical applications of statutory requirements that T must be “in the presence” of the subscribing witnesses when he signs his will and that they in turn must sign in the presence of T and each other lead to inequitable results.

(1) Statutory Intent: to prevent fraud.

(2) Where there is no claim of fraud, incapacity or undue influence a will is valid if there has been substantial compliance w/ the statute.

3. Estate of Morea (New York, 1996) – Lack of Disinterested Witnesses.

a) Facts: Morea’s will had 3 witnesses, one who was not named as a beneficiary in the will, a son who was left less than his intestate share under the will, and a friend, who was also a beneficiary under the will.

(1) The court questioned whether the bequest to the friend was invalid due to lack of disinterested witnesses.

b) Holding (Rule of Law): A party who is adversely affected by the terms of a will can serve as a witness thereof b/c he will receive no beneficial disposition thereunder.c) Reasoning:

(1) APPROACH 1 (extreme): if there is an interested witness (makes all the difference) will = void.

(2) APPROACH 2 (other extreme): if there is an interested witness (makes no difference) will = valid (UPC)

(3) APPROACH 3 (middle ground): Usually, kick out interested witnesses (those who would benefit under the will) = only 1 witness left will = void b/c lacking the two-witness requirement (footnote p. 240).

4. If Morea court would have just applied the statute on its face friend would not have received anything + will would have been valid = middle ground that the statute creates.

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a) If the will is held to be valid, the witness-beneficiaries lose their shares (purged of their testate shares), UNLESS… b) SUPERNUMERARY RULE : Not going to purge an interest witness as long as there are enough disinterested witnesses.

(1) As long as there are 2 disinterested witnesses (no matter how many interested witnesses there are) will = valid + no purging of the interested witnesses.

c) WHICHEVER-IS-LESS RULE : if the interested witness is going to under the will or intestacy credibility is not compromised as long as the interested witnesses is testifying to whichever is less.

(1) This applies to whichever is less under a present will vs. share under a prior will, too.

D. Excusing Execution Defects by Ad Hoc Exception

1. In re Pavlinko’s Estate (S. Ct. of Pa., 1959)

a) Facts: H and W inadvertently signed one another’s wills. On H’s death, Martin (), a legatee under W’s will, sought to have that will probated as H’s.b) Issue: If a party mistakenly signs another will instead of his own, may the will he signed be modified at his death to include the provisions of the instrument which he had intended to sign?c) Holding (Rule of Law): No, a court may not rewrite a clear and unambiguous will even for the purpose of implementing the obvious intentions of the testator.d) Reasoning: Strict Compliance

(1) If the name is incorrect on the wills signed by H and W → provisions become a nullity.

(a) W’s will: All other formalities = OK in this case, but testamentary intent is lacking = problem w/ trying to probate W’s will.

(b) H’s will: Testamentary intent = OK, but lacks formalities.

(2) Neither H’s nor W’s will was valid both died intestate.

(a) Strict compliance held to be optimal approach to avoid slippery slope.

2. In re Snide (Ct. App. NY, 1981)

a) Facts: nearly identical to Pavlinko.

(1) Distinction b/w the 2 cases probably d/t the passage of time (nearly 30 years of bucking the strict-compliance trend).

(2) H (decedent) and W intended to execute mutual wills at a common execution ceremony, each executed by mistake the will intended for the other. W argued that the will signed by H was admissible if it was reformed to substitute H’s name for W’s and vice versa.

b) Holding (Rule of Law): Where a H and W execute identical wills at the same time, but by mistake they each sign the other’s will, upon death of one of the spouses, the will that the decedent spouse actually signed is admissible to probate provided the significance of the only variance b/w the 2 instruments is fully explained, the will is genuine, and the will was executed in accordance w/ law.c) Reasoning: Substantial Compliance

(1) Will = valid d/t decedent’s intent.

(2) Substantial compliance favored, otherwise only receive burdens w/o corresponding benefits.

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(3) Testamentary intent favored in instances over formalities.

d) Narrow decision – solely dealing w/

(1) Identical +

(2) Mutual wills +

(3) Simultaneously executed +

(4) Statutory formalities.

E. Curative Doctrines: Substantial Compliance & Harmless Error

1. SUBSTANTIAL COMPLIANCE DOCTRINE: a will should be admitted to probate if there is clear and convincing evidence (generally the highest evidentiary standard in civil litigation) that the purposes of formalities (cautionary, channeling, protective, and evidentiary) were served despite a defective execution.

a) Benefits of SPA = Cheaper

(1) Reduces litigation

(2) Don’t have to find witnesses in the future in the event litigation occurs.

b) Jurisdictional Split

(1) TX: If the will is not signed, even if the SPA is completed will = invalid (*witnesses swore on the SPA to that which they had not actually done).

(2) OK: adopts Ranney position.

c) In re Will of Ranney (S. Ct. NJ, 1991) Adopts Substantial Compliance + remands to lower court to ascertain intent of witnesses at time of signing.

(1) Facts: After Ranney’s death, his wife contested probate of his will on the ground that the signatures of the witnesses on a self-proving affidavit failed to satisfy the statutory requirements.

(2) Holding (Rule of Law): Where witnesses w/ the intent to attest a will, sign a self-proving affidavit but do not sign the will or attestation clause, clear and convincing evidence of their intent should be produced to establish substantial compliance w/ the statutory requirements.

(3) Party seeking to uphold the will contends:

(a) If SPA = AC

(b) And AC = on the will

(c) SPA = on the will

(d) the will = witnessed

(4) Court not comfortable allowing SPA to function as both a form of “evidentiary insurance” and the signature on the will.

(a) Supposed to have a value-added function that strengthens validity of the will.

(b) If it functions as both the things that validates the will and the additional evidence that the will was properly validated SPA becomes something more than it was intended.

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2. UPC § 2-503. HARMLESS ERROR DOCTRINE (a/k/a Dispensing Power): A document should be admitted to probate although it was not properly executed if the court is “satisfied…that the deceased intended the document to constitute his will.”

a) Give the court dispensing power – upon a showing of clear and convincing evidence, the court has the power to validate a document the deceased intended to be a will even though the formalities are not complied w/.b) In re Estate of Hall (S. Ct. of Mt., 2002) Applies HE.

(1) Facts: H’s daughter argued that a draft of a joint will executed by H and W and notarized by their attorney in the absence of any other witnesses was invalid b/c it was not properly witnessed.

(2) Holding (Rule of Law): It is irrelevant that a document offered for probate as a will has not been properly witnessed where clear and convincing evidence establishes T’s intent that the document be the T’s will.

(a) JW revoked all previous wills and codicils made by either H or W.

(b) After H and W executed the JW, H directed W to destroy the original previous will.

3. Substantial Compliance vs. Harmless Error

a) While substantial compliance focuses on being close (“near-miss” standard), harmless error ignores the traditional statutory elements and focuses directly on whether T intended the document to be effective.b) Harmless Error Ranking of Formalities

(1) WRITING: indispensable b/c failure to give permanence to the terms of will is NOT harmless error.

(2) SIGNATURE: leaving will unsigned raises doubt as to the finality and genuineness of the instrument (unsigned will = rebuttable presumption that document is only a draft).

(3) ATTESTATION: modest contribution, primarily protective function

c) Possible Components to Testamentary Intent:

(1) Intent that document be used as evidence after death.

(2) Intent that the document convey no present interest.

(3) Intent that the document be a will.

(4) Intent that the document not be a will substitute.

(5) Intent to execute a document.

(6) Intent that the document be final unless later revoked.

(7) Intent that after death certain beneficiaries receive certain property.

d) Harmless Error Jurisdiction: minimum requirement that document be admitted to probate as a will = INTENT that document be a will. = Increase litigation over concept of testamentary intent. Problems arise…

(1) More casual documents examined by courts (problem of viewing the means in themselves as the ends, instead of viewing them as means to the ultimate end of INTENT).

(2) Broad Interpretation of Testamentary Intent: the intent to provide for property disposition after death (this would allow for easy application to a will substitute, like a trust).

(3) Narrow Interpretation of Testamentary Intent: unless T intended to fall w/in the legal category called a will, then he wouldn’t meet the requirement.

e) OK: Substantial compliance jurisdiction (Guzman hinted that OK doesn’t apply the doctrine correctly b/c legislative intent still controls here).

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F. Holographic Wills [formalities + testamentary intent + whether jurisdiction permits extrinsic evidence to be used in order to determine testamentary intent]

1. UPC §§ 2-502(b) and (c) [Holographic Wills.]

a) A will that does not comply w/ subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the T’s handwriting.b) [Extrinsic Evidence.] Intent that a document constitute the T’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the T’s handwriting.

2. Kimmel’s Estate (S. Ct. Pa., 1924)

a) Facts: Kimmel (decedent) wrote a letter to his mentioning among other things, what was to happen to his possessions if anything were to happen to him. His sons attempted to probate the letter.

(1) Condition: “If anything happens…”

b) Holding (Rule of Law): An informal document evidencing intent of a conditional gift and an intent to execute may serve as a testamentary document.c) Reasoning: In this case, Kimmel’s spelling/grammar were very poor, but the language telling his sons what should happen if he were not to survive clearly shows a gift that is conditional upon the occurrence of something, namely Kimmel’s death.

(1) Most holographic wills are informal in character.

(2) The fact that Kimmel mentioned the weather in the letter does not change the testamentary intent.

(3) Kimmel signed the letter “Father” which shows he considered this letter a final/executed document.

(4) Intent to execute is more important than Kimmel’s knowledge of the formal requirements for execution.

3. Estate of Gonzalez (Maine, 2004)

a) Facts: Gonzalez filled out a preprinted will naming 3 of his 5 children as beneficiaries, but he did not have the will properly witnesses. The 3 named beneficiaries submitted the will for probate as a holographic will and the 2 omitted children objected.

(1) Gonzalez filled out preprinted will and showed it to his brother and brother’s wife.

(2) He did not have the 2 witnesses sign the form he had filled out, instead had them sign a blank form and told them he would print the information that he had on the first form onto the second/signed form.

(3) He died before completing this.

b) Holding (Rule of Law): Printed portions of a will can be incorporated into a holographic will where the trial court finds a testamentary intent, considering all of the evidence in the case.c) Reasoning: 3 Different Approaches

(1) CROSS-OUT VIEW: Ignore all preprinted words, and determine whether the handwritten words, taken alone, fulfill the requirements of a holographic will.

(a) Must be able to ascertain testamentary intent from just the handwritten words alone.

(2) LOOK-AT VIEW: Look to the preprinted language in order to determine the context of the handwritten notes.

(a) Cannot necessarily give effect to the printed portion.

(3) LEAVE-IN VIEW (UPC – Court adopts this approach): Incorporate the printed portion into the handwritten portion.

(a) Testamentary intent is included in the typed language + handwritten language of the document.

(b) Decedent intended to adopt this document as his last will and testament.

4. In re Estate of Kuralt (S. Ct. of Mt., 2000) – good example of a court using extrinsic evidence to effectuate a desired outcome.

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a) Facts: Kuralt (tv dude) wrote a letter to his mistress of 30 years, Shannon, a couple of weeks before he died, while very sick, expressing an intent that Shannon “inherit” property they had shared. Kuralt’s estate (his wife and daughter) argued that the letter was not a valid holographic codicil to his formal will.

(1) Document 1: valid holographic will (signed + dated + clear testamentary intent).

(a) Letter to Shannon w/ “inherit” and “bequest” language.

(2) Document 2: formalized will done w/ an attorney.

(a) No mention of Shannon or the property.

(3) Document 3: letter to Shannon

b) Holding (Rule of Law): A letter written by the deceased while in extremis, expressing an intent that another “inherit” a specific bequest of the deceased’s property and not the entirety of the deceased’s estate, is a valid holographic codicil to the deceased’s formal will.

5. Unit II Handout 5a: document entirely handwritten by decedent + dates + signed + specific property indicated BUT lacks specificity in regards to division and distribution of property = Lack of testamentary significance. Testamentary intent is probably not lacking (may need some extrinsic evidence) b/c the document is written in terms of the decedent not being around anymore.

G. Conditional Wills1. Is the condition set forth in the document a true condition (conditional upon that event occurring and no others) OR was the conditional event merely the urge motivating the decedent to create the document?

2. Highly fact-specific inquiry.

IV. Revocation & Resuscitation of Wills [Formalities + Intent] (Unit II Handout 6)A. 3 Ways to Revoke a Will

1. Subsequent Instrument (revocation by a later will/codicil – requires more than one document)

a) Statutes

(1) OK – 84 O.S. § 101(1).

(2) UPC § 2-507(a)(1).

b) Express Intent to revoke – aasy if you are dealing w/ a standard will.

(1) Exordium Clause will generally contain relevant boilerplate.

(2) Example: “I, Shirley Joyce Speers . . . do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking any and all former Wills and Codicils by me at any time made”

c) Implied Intent to revoke – when there is no express written evidence, presumptions of revocatory intent often control analysis.

(1) 2 Way to Revoke by Inconsistency:

(a) ID of beneficiaries changes and/or

(b) Disposition of the entire estate.

(i) Anytime Document-2 has residuary clause = Implied revocation of Document-1.

(2) Modern View: treat a subsequent will that does not expressly revoke the prior will, but makes a complete disposition of T’s estate, as presumptively replacing the prior will and revoking it by inconsistency.

(a) If the subsequent will does not make a complete disposition of T’s estate, it is not presumed to revoke the prior will but is viewed as a codicil, and the property not disposed of under the codicil is disposed of in accordance w/ the prior will.

(3) Older View: in the absence of a revocation clause, a general residuary clause in a later will was not enough to revoke specific bequests in an earlier will b/c the earlier individual bequests and the later residuary clause were not literally inconsistent.

(4) Codicil – A kind of a “mini-will.” It is a document executed w/ appropriate formalities (i.e. attested or holographic, whatever flies in the relevant jurisdiction) that supplements or amends, rather than supplants or replaces, the underlying will to the extent of inconsistency b/w the 2 documents. [UPC § 2-507(b) – (d)]

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(a) Rebuttable Presumptions: Revocation of a codicil has no affect on the validity of the underlying instrument (underlying will remains intact).

(b) Revocation of the underlying will revokes all codicils.

(i) Destroying underlying will destroys all codicils.

(ii) *Guzman: this presumption is probably incorrect – if someone intended to revoke all instruments would probably destroy all instruments.

d) Thompson v. Royall (Va. Sup. Ct., 1934) – CB p. 290 (Example of strict compliance for revocation by subsequent instrument and implied intent)

(1) Facts: T attempted to revoke her will and codicil by signed notation on the back of each that purported to render them void.

(a) Attorney wrote “memorandum” and “void” on both documents.

(b) T signed both documents.

(c) Witnesses present.

(2) Holding (Rule of Law): Revocation of a will by cancellation is not accomplished unless the written words of the document are mutilated or otherwise impaired.

(3) Reasoning:Holographic Will Analysis: Requires that subsequent instrument meet the statutory requirements for a holographic will (instrument must be valid).

(a) T failed to meet these requirements b/c the provisions/portions that were material were not in T’s handwriting (written by her attorney).

(4) Attested Will Analysis : although the witnesses were present, they did not sign the document.

(5) Written Cancellation Rule : written cancellation will be accepted so long as it is placed so as to physically affect the written portion of the writing, and not merely on blank parts of the document on which the will is written.

e) UPC § 2-507. Revocation by Writing or by Act (CB p. 286)

(1) § 2-507(a)(2) Analysis of Thompson:

(a) Codicil : the words of cancellation were written on the back, would be revoked.

(b) Will : tougher case than the codicil, b/c the canceling words were written on the manuscript cover attached to the will, not on the will itself. If the will were revoked under § 2-507(a)(2) → under the Harmless Error Rule of § 2-503 (requires clear and convincing evidence that the writing on the manuscript cover was intended to revoke the instruments – and surely there was ) → attempted revocation would be effective.

(c) UPC § 1-201(57) defines will to include a codicil and any testamentary instrument that merely appoints an executor or revokes or revises another will. In states recognizing holographic wills, a holograph can revoke a typewritten, attested will – a principle that is implicit in Kuralt.

(i) UPC appears to define will as more than just the actual words, but rather includes the words and the instrument on which they appear.

(d) UPC § 2-503 (harmless error) speaks to intent of making, revoking, reviving, and altering wills.

2. Physical Act [requisite physical act + intent to revoke – only need one document]

a) Formalities: sufficient “revocation formalities” will be the physical act inflicted upon the document as permitted by the jurisdictions statute.

(1) OK: 84 O.S. §§ 101-103

(a) 101(2). Revocation of Will (by physical act)

(b) 102. Proof of Destruction

(c) 103. Proof of Alteration

(2) UPC § 2-507(a)(2)

b) Harrison v. Bird (Ala. Sup. Ct., 1993) – CB. p. 287 (revocation by physical act – destruction)

(1) Facts: After T died, Harrison (), the sole beneficiary of T’s will, filed for probate a document purporting to be T’s last will and testament, despite the fact that T’s attorney had torn T’s will into 4 pieces after T informed him that she wanted to revoke her will.

(a) 2 valid original wills (original + duplicate original).

(i) One original retained by T’s attorney.

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(ii) The other original retained by (beneficiary).

(b) T orally requested destruction of will.

(i) Law required T to destroy the will OR request will’s destruction + be in the presence of the party when he destroyed the will.

(2) Holding (Rule of Law): A rebuttable presumption of revocation exists where a will cannot be found among a deceased’s personal effects.

(a) Presumption arises if there was a will that was known to be in T’s possession at death + can’t located the will or if the will is found in a mutilated state after T’s death.

(b) Presumption that revocation of one original will also acts to revoke all other originals.

3. Change in Circumstances (revocation by operation of law)

a) Circumstances:

(1) Divorce – In almost all jurisdictions, by statute, divorce revokes a pre-divorce will made either “to” or as sometimes stated, “in favor of” the now-ex spouse.

(2) Marriage – In many states, marriage functionally revokes a pre-marriage will to the extent of the now-spouse’s intestate share or actually revokes a pre-marriage will.

(3) Birth of Child – In very few states, birth of a child revokes a pre-marriage will (interesting where no marriage preceded the childbirth).

b) UPC § 2-804. Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by Other Changes of Circumstances.c) OK: follows the first rule (re divorce) but not the second, and has a rule that affects the policy of the third (pretermitted heirs, later discussed).

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B. Extent of Revocation – Partial Revocation by Physical Act (Jurisdictional Split)

1. OPTION 1 – Allowed: UPC § 2-507 and statutes of many states authorize.

2. OPTION 2 – Prohibited: Several states allowed partial revocation by subsequent instrument and don’t allow a will to be revoked in part by a physical act for 2 reasons:

a) Cancelling a gift to one person necessarily results in someone else taking the gift, and this “new gift” – like all bequests – can be made only by an attested writing (or a holographic will if the jurisdiction permits).

(1) Example: “I give all my real estate to A, B, and C.” and then B or C crosses “A” out B and C’s positions have been enhanced.

(2) Enhancing a bequest requires execution of the requisite formalities in order to be valid.

b) Permitting partial revocation by physical act offers opportunity for fraud.

(1) Person who made the new gift may be the person who made the cancelling marks.

c) If partial revocation by physical act is not recognized will must be admitted to probate in the form in which it was originally executed if the original language can be ascertained.

3. OPTION 3 – Sometimes Allowed – Jurisdiction may allow partial revocation by physical act, so long as it doesn’t affect a material or substantial change to the overall estate plan.

a) Look to the size of the estate and the number of people taking.

C. Doctrines of Resuscitation of a Previously Revoked Valid Will

1. REVIVAL : gives life to an already-revoked document.

a) UPC § 2-509. Revival of Revoked Willb) OK – 84 O.S. § 106. Revocation of Subsequent Will

(1) Kind of melds an intent-based approach + anti-revival approach,

(2) Appears to be closer to anti-revival b/c “it must appear by the terms of such revocation” = some writing that must have that that effect.

(a) Does not expressly bar revival, but requires that intent must appear by the “terms.”

(b) Does not require the terms to be written, so an oral declaration of revival might satisfy this requirement.

c) Typical Revival Scenario:

(1) T executes will #1. Subsequently, T executes will #2, which revokes will #1 by an express clause or by inconsistency. Later, T revokes will #2. Is will #1 revived?

d) 3 Jurisdictional Approaches/Theories:

(1) OPTION 1 – Automatic Revival (a few states): will #1 is not revoked unless will #2 remains in effect until the T’s death.

(a) Since a will does not operate until T’s death, will #2 is not legally effective during T’s life.

(b) Therefore will #1 is not “revoked” by will #2.

(c) Technically, the theory does not involve “revival” at al b/c the first will has never been revoked.

(2) OPTION 2 – (large majority of states): assumes will #2 legally revokes will #1 at the time will #2 is executed. Then states split into two groups –

(a) Group 1 – Middle Ground (majority): upon revocation of will #2, will #1 is revived if T so intends.

(i) T’s intent may be shown from the circumstances surrounding revocation of will #2 or

(ii) from T’s contemporaneous or subsequent oral declarations that will #1 is to take effect.

(b) Group 2 – Anti-Revival (minority): a revoked will cannot be revived unless re-executed w/ testamentary formalities or republished by being referred to in a later duly executed testamentary writing.

(3) OPTION 3 – Middle Ground (UPC § 2-509 – supplements “intent” requirement w/ rebuttable presumptions in order to ease burden): Different presumptions for whole and partial revocation

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(a) If will #2 wholly revoked a will #1 by a revocatory act under § 2-507(a)(2) then the will #1 remains revoked unless it is revived.

(i) Will #1 is revived if

(a) it is evident from the circumstances of the revocation of the subsequent will or

(b) from T’s contemporary or subsequent declarations that T intended the previous will to take effect as executed.

(ii) Rebuttable Presumptions Against Revival:

(a) If will #2 wholly revokes will #1 (impliedly or expressly).

(b) And if will #2 is revoked

(c) Then presume will #1 remains revoked.

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(b) If will #2 partly revoked will #1 and will #2 is then revoked by a revocatory act under § 2-507(a)(2), a revoked part will #1 is revived

(i) unless

(a) it is evident from the circumstances of the revocation of the subsequent will or

(b) from T’s contemporary or subsequent declaration that T did not intent the revoked part to take effect as executed.

(ii) Rebuttable Presumption Favoring Revival:

(a) If will #2 partially revokes will #1

(b) And will #2 is revoked by physical act

(c) Then it is presumed will #1 is revived.

2. DEPENDENT RELATIVE REVOCATION : “undoes” the revocation to say it was never effective to begin w/ (and thus that the will never died so as to require resuscitation).

a) DRR – follows a 2-step approach:

(1) STEP 1 : Identify whether T’s revocation was based on a mistake of fact/law. This will normally require some pretty good evidence of that mistaken belief, which is not always available after the T has died.

(2) STEP 2 : If so, identify which T would most likely prefer (intend):

(a) Option 1: lift (undo) the mistaken revocation or

(b) Option 2: let the property pass through intestacy.

(3) ANALYSIS TIP : Step 2 might be hard to figure out.

(a) Good indicator: look to what the T actually tried to accomplish, but couldn’t.

(b) Example: each of the “three common mistakes” identified above, what exactly was it that the T really wanted, but just couldn’t have? What was T’s “first” or “best intent”? That should point you toward the answer, and simultaneously reveal why DRR is called the law of “second best.”

b) Three Common Mistakes:

(1) MISTAKE #1 : Rip up Will #1 on the mistaken belief that Will #2 is valid.

(a) Example – Conditional Revocation: T effectively revoked W1 by physical act, but intent to revoke was based on a mistake of law (belief that W2 is valid when it is not).

(b) Option 1: let mistaken revocation state = T dies intestate.

(c) Option 2: lift the mistaken revocation = T dies testate under W1. (closer to what T intended)

(2) MISTAKE #2 : Rip up Will #2 on the mistaken belief that Will #1 will be revived.

(a) Estate of Alburn (Wis. Sup. Ct., 1963)

(i) Facts: T wrote W1 T moved = prompted writing W2 T moved again = T ripped up W2 and had brother-in-law throw it away (requisite physical act + revocatory intent).

(ii) T under the mistaken belief (of law) that she had effectively revoked W2 and reinstated W1.

(iii) Revival not recognized in this jurisdiction at this time.

(iv) Holding (Rule of Law): Where a will is mistakenly revoked in the belief that an earlier revoked will would be revived, the doctrine of dependent relative revocation may be applied to revive the mistakenly revoked will.

(v) Reasoning: Uncontradicted evidence (sister-in-law’s = disinterested witness’ testimony) established T’s mistaken belief.

(vi) Option 1: Testamentary scheme under W2 is closer to T’s testamentary plan than distribution through intestate succession.

(vii) Option 2: No evidence that T wished to die intestate. No change in circumstances occurred.

(3) MISTAKE #3 : Cross out a provision believing an insertion (change) then made is valid.

(a) Step 1: Physical act of partial revocation.

(b) Step 2: Addition of new term would require compliance w/ formalities (attested or holographic).

(i) Attested will – new execution ceremony.

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(ii) Holographic will – in the margin T writes something like “I have changed bequests from X to Y” + sign + date.

(c) Example 1: On Will #1 T crosses out “$10,000 to X” and writes in “$100,000 to X.”

(i) T believing this act was effective is a mistake of law (did not meet requisite formalities).

(ii) Court cannot give effect to T’s intent, so it has to choose the second-best thing:

(iii) Option 1: let revocation stand = T dies intestate.

(iv) Option 2: lift mistaken revocation = T dies testate under Will #1. (closer to T’s intent = better choice).

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HOLOGRAPHIC WILLS

OKLAHOMA TI. 84, § 54 UPC 2-502(b)

1. Entirely handwritten, dated & signed by T 1. Signature and material portions of the document are in T's handwriting.

Which is easier to meet? Later, consider curative doctrines on each. OK: Cuts down on fraud and forgery (in theory) because the entire document is created at the hands of the

testator. UPC: immaterial portions may be typed. More holographic wills are probably accepted under the UPC d/t lack of date requirement (fewer formalities

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ATTESTED WILLS

OKLAHOMA TI. 84, § 55 UPC 2-502(a) –

1. Written 1. Written

2. (1): Subscribed (signed at end) by T or other in T's presence & at T's direction (proxy)

2. Signed by T or in T's name in T's conscious presence by some other individual & at T’s direction (proxy)

3. (2): Subscription or acknowledgment of subscription made in the presence of the witnesses

3. [T need not be in other's presence when signed]

4. (3): Declaration a/k/a publication (“this is my will,” communicated either expressly or by conduct) at subscription or acknowledgment.

4. [No requirement of publication]

5. (4): 2 witnesses, who each must sign at end of will at T’s

request and in T’s presence .

5. Either:a. 2 witnesses, who each must sign within a reasonable time after witnessing eitherT's or proxy's signature;T's acknowledgment of signature; ORT's acknowledgment of will.ORb. Acknowledged by T before a notary or other so-

Which easier to meet? Later, consider curative doctrines on each.

UPC – Reasonable time = much more broad than OK

UPC – Conscious presence = much more demanding than OK

UPC – Notary alternative to that of witnesses is accepted b/c the position of notaries in society = trusted + much more

efficient

REVOKING A VALID WILL

3 Ways to Revoke a Valid WIll

OKLAHOMA LAW 84 O.S. §§ 101 and 102

UPC § 2-507

(1) Subsequent Instrument 101(1)Partial/Complete revocation of written will:by a written will or other writing of the T, declaring such revocation or alteration, and

Executed with the same formalities with which a will should be executed by such T.

(a)(1)Partial/Complete revocation of a will: by executing a subsequent will that revokes the previous will or part expressly or by inconsistency (implied revocation).

(2) Physical Act Revocatory Intentw/ intent and for the purpose of revoking the same, by T himself, orBy some person in his presence and by his direction.

Formalities – Revocatory Act101(2) – being burnt, torn, canceled, obliterated or destroyed,

102 – if canceled or destroyed by any other person than T, the direction of T, and the fact of such injury or destruction, must be proved by two witnesses.

§ 2-507(a)(2)Revocatory IntentT performed the act w/ intent and for the purpose of revoking the part of or the entire willAnother person (not T) performed the act in the T’s conscious presence and by the testator's direction.

Formalities – Revocatory Act on the Willburning, tearing, canceling, obliterating, or destroying the will or any part of it (whether or not the burn, tear, or cancellation touched any of the words on the will).

(3) Change in Circumstance (operation of law)

Divorce: revokes a pre-divorce will made either “to” or as sometimes stated, “in favor of” the now-ex spouse.

Pretermitted Heirs: birth of a child revokes a pre-marriage will (interesting where no marriage preceded the childbirth).

§ 2-802. Effect of Divorce/Annulmentperson is not a surviving spouse unless, by virtue of a subsequent marriage, he [or she] is married to the decedent at the time of death.

A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section

V. Challenges to a Valid Will (Unit II Handouts 7A and 7B)A. LACK OF TESTAMENTARY INTENT: document argued as the will was not intended to be the will.

1. Components:

a) T intended a death-time transfer of wealth, andb) T intended to make that transfer through that document.

2. Not a common challenge for attested wills (really rare, but not unheard of – challenge in the Kuralt case).

B. LACK OF FORMALITIES: lacked requisite statutorily enacted formalities in that jurisdiction (usually a challenge in making a will – argue that it was not a valid will b/c it did not meet the formalities. Slightly more common challenge than lack of T/I, but still not very common.

C. LACK OF TESTAMENTARY CAPACITY (exact no. of elements depends on jurisdiction.)

1. Testamentary Capacity [OK ELEMENTS (1) – (3)] – exists when a person possesses the abilities to

a) Understand the nature and extent of his property (know what you own).b) Understand the natural objects of his bounty.

(1) Who are natural objects?

(2) Subjective question run through objective test = weird outcomes → wills that represent non-majoritarian wishes are at a greater risk under this challenge – disfavored beneficiaries).

c) Understand the nature of the disposition being made.

(1) Element of testamentary intent – someone who understands and appreciates what he is doing has testamentary intent.

d) Form an orderly desire regarding the elements 1, 2, and 3.

(1) “Orderly” is another tricky aspect – can result in some wills being very susceptible to challenge.

2. Burden of persuasion on will contestant that T lacked testamentary capacity.

3. Question of fact – Evidence (before and after the will’s execution) of the following factors (to the extent they are relevant to T’s mental condition):

a) Mental capacityb) Appearancec) Conductd) Habitse) Conversation

D. UNDUE INFLUENCE: Lack of TC + U/I = most common grounds for will challenges b/c T’s mental capacity overlaps w/ susceptibility element of U/I.

1. Burden of persuasion that a will has been tainted on the Will Contestant (WC).

2. Burden of evidence production on WC:

a) Direct Evidence: very hard to acquire/produce.b) Circumstantial Evidence: may be offered in order to give rise to rebuttable presumption of undue influence which shifts the burden of evidence production (not persuasion) on to the Will Proponent (WP).

(1) OK RULE (more bark than bite b/c presumption is extinguished upon the introduction of ANY reasonable evidence by WP):

(a) Confidential relationship exists b/w T (weaker party) and the alleged undue influencer (stronger party).

(i) Confidential relationship = fiduciary relationship.

(ii) Exists = whenever trust and confidence are placed by one person in the integrity and fidelity of another.

(b) Stronger party actively assisted the Weaker party in the preparation or procurement of the will.

(i) Must be active/material participation in the substance of the testamentary act.

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(ii) Not just participation in formal matters undertaken at T’s direction.

(2) R.3D OF PROPERTY RULE – elements much broader than OK – allows for the creation of presumption of undue influence in a far greater number of circumstances than under the narrower OK rule:

(a) Confidential relationship exists b/w T (weaker party) and the alleged undue-influencer (stronger party).

(b) Stronger party under suspicious circumstances assisted the Weaker party in the preparation or procurement of the will.

(i) Anytime there are a series of wills this could create suspicious circumstances, especially when the later will is distinctly different from the earlier will(s).

(ii) Stronger party is the primary beneficiary.

(iii) Client’s/family’s/other’s perspective.

(3) Determining whether WC’s evidence establishes the facts giving rise to presumption – consider (non-exclusive) whether:

(a) the alleged influencer

(i) was or was not a natural object of T’s bounty;

(ii) was a trusted or confidential advisor or agent of T;

(iii) was present and/or active in the procurement or preparation of the will;

(b) T was of advanced age or impaired faculties; and

(c) Independent and disinterested advice regarding the testamentary disposition was given to T.

c) If WP then…

(1) Neutralizes Presumption – Introduces evidence which would support a finding (lowest standard) that undue influence was not brought to bear against T presumption disappears AND trial court must determine the existence or nonexistence of undue influence based on evidence produced directly on the issue (start all over).

(2) Fails to introduce any probative evidence to rebut the presumption trial court must direct verdict for WC.

E. Risks & Rewards to Challenging a Will:

1. Risks: time spent challenging/time diverted from other more satisfying endeavors, expense, strained family relationships.

2. Rewards: economic gain, moral or emotional victory (often times the share under a will is treated a proxy for the relationship b/w T and the beneficiary).

F. Planning for and Avoiding a Will Contest1. Warning Signs:

a) Eccentric client’s testamentary scheme is radically different from previous plans.b) T imposes conditions on bequests that are likely to cause beneficiaries to bitch.c) T makes a disposition to unpopular party (e.g., mistress, KKK, etc.).d) Omission of a close family member or unexplainable distinction among family members of equal relation (e.g., disinherits or disfavors a child child might read the will as a personal rejection by the parent = more likely to contest).

2. Strategies (extra precautionary measures to prevent or prevail in a later will contest):

a) Letter to the lawyer : instead of a statement of reasons, letter in T’s handwriting giving detail for the disposition T wants to make is sent to lawyer. Lawyer receives letter and responds to T in w/ letter detailing consequences of disposition for T’s family and requests a reply letter w/ reasons for disposition. T receives and replies to lawyer’s letter w/ reasons for disposition. Lawyer keeps all letters in file as evidence.b) Video discussion : b/w T and lawyer before witnesses where T explains why he wants to dispose of his property in the manner provided in the will.c) Family meeting : at which T explains to family his rationale.d) Professional examination : of T’s level of capacity immediately before executing a will or trust (if T has no history of mental problems = better to consult family doctor than a psychiatrist).e) Precautions at will execution : use disinterested witnesses who will present well when testifying in court (e.g., friends, community leaders, etc.).

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f) No-contest clause : has little effect unless willing to make substantial bequest to potential contestant.g) Inter-vivos trust : T puts property in trust and names an institutional trustee + can be kept secret from T’s heirs (b/c it is inter-vivos). May still be challenged, but much harder.h) Inter-vivos gift : may still be challenged, but the donor is able to testify in defense of his sanity and the absence of undue influence.i) Write a check : for $1000 or more as a gift to each potential contestant on the same day that the donor executes his will or trust. By cashing the check, the contestant invites a vigorous cross-examination in a subsequent contest on the question why he accepted the gift if he though that the donor lack capacity or was being unduly influenced. (drawback = looks like a lawyer’s gimmick and contestant can argue he did not know at the time that donor lacked capacity or the undue influence.

VI. Comprising & Construing a WillA. Comprise

1. GENERAL RULE – Rule of Integration [intent + presence]: any pages that are physically present at execution + intended to be part of the will. which pieces of paper were meant to be in the will when it was executed? Integration is seldom a problem because usually all of the will’s pages are found stapled together, with the signatures at the end. Occasionally, however, someone will offer a loose pile of papers as a will

2. EXCEPTION: Incorporation By Reference Doctrine (documentary exception) –

a) UPC § 2-510. Incorporation by Reference: A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

(1) Pros: arguably intent reflective.

(a) Allows Strict-Compliance jurisdiction to release its stranglehold on formalities requirements.

(b) Strict Compliance Jurisdiction + IBR = somewhat ironic.

(2) Cons: potentially increases litigation.

b) Elements of IBR:

(1) Exists – Document referenced must exist at execution

(2) Referenced – document is sufficiently described in the will.

(3) Intent (to be Incorporated ) – T intended it to be part of the will

3. Republication By Valid Codicil Doctrine: “A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent w/ the testator’s intent.

a) Clark v. Greenhalge (1991): IBR + Republication by codicil = reasoning behind holding.b) Johnson v. Johnson (OK 1954): employed republication by codicil to find a valid will – outlier, never been overruled, but bad reasoning.

(1) Only ever had a codicil when there is a valid underlying will.

(a) In this case, there was no underlying valid will.

(b) Majority held that “anything testamentary in character is a will.”

(c) Most jurisdictions would not agree (a will requires formalities + intent).

(2) OK is a substantial compliance jurisdiction (although Guzman thinks in name only – really strict compliance).

(a) This case emphasized a substantial compliance approach – which has not been embraced since this decision.

(3) Probably no other substantial compliance jurisdiction would find a valid codicil where underlying document was did not amount to a valid will.

c) 3 Better Arguments for Johnson:

(1) Argue there is one valid will (the bottom handwritten portion meets OK holographic will requirements) argue that typewritten portion is then incorporated by reference into the holographic will.

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(a) Exist – typed portion was in existence at the time of the execution of the holographic will (most people don’t write on a blank sheet of paper at the bottom and then use that paper for typed-written statements).

(b) Referenced – typed-written portion sufficiently referenced b/c handwritten portion only makes one disposition.

(c) Intent – T intended to incorporate based on reasons listed above.

(2) Could argue Integration for Johnson:

(a) Presence + Intent = satisfied.

(b) When IBR into another document brought that into the body of the will.

(c) Holographic wills can incorporate typewritten stuff by reference, but no case law allowing integration under the same reasoning.

(3) UPC – harmless error could save Johnson will, too.

4. EXCEPTION: Act w/ Independent Significant Doctrine (conduct-based exception / non-testamentary acts)

a) If the beneficiary or property designations are identified by act or events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld under this doctrine.

(1) Conduct that is not witnessed in terms of the requirements for a valid will may still give content to a will, as long as that conduct has some independent significance.

(2) Some conduct that has independent significance + desire to change the will (act that is independently driven from the desire to be in T’s will).

b) UPC § 2-512. Events of Independence Significance:

(1) A will may dispose of property by reference to acts and events that have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of another individual’s will is such an event.

c) Classes of beneficiaries can expand and contract depending on how they are worded (open-class).

5. UPC § 2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property. Allows wills to refer to a separate, signed writing that identifies who should get particular items of tangible personal property. The writing can be changed after the will has been executed

a) Restrictions attended by so few requirements could be the reason for the signature requirement and property limitation (tangible property + no money).b) Cabining the ill effects that could arise w/ the flexibility under this UPC provision.

B. Construe1. If T’s intent is discernible construe the will in that manner.

a) Intent (supreme, but not absolute) – determining intent can be affected by the evidentiary rules in a particular jurisdiction (limited to 4-corners, extrinsic + intrinsic + circumstantial, etc.).b) Source of Intent – the evidence of determining intent in order to construe will

2. GENERAL RULE: Intent governs unless by its terms it violates public policy, statutes, or the Constitution (impede federal statutes or purpose and spirit behind the constitutional provisions.

3. CLASS LIMITATIONS ON INTENT:

a) SPOUSE - Nearly Absolute Protection against T’s Intent – T can attempt to cut out spouses completely (except for GA and community property states)

(1) Elective Share Statute – spouses are entitled to a specified share

(a) Spouse can take share under the will, OR

(b) Elect to take statutory defined share.

(2) OK (Unit II Handout 8 (C)): Surviving spouse entitled to ½ JIP even though T cut spouse outta will.

B) DESCENDANTS – limited restraint on Intent

(1) OK: any T can disinherit any descendant if it is done:

(A) INTENTIONALLY; AND

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(B) CLEARLY

(C) ON THE FACE OF THE WILL

(2) OMITTED SHARE STATUTE - OK Standard for children left out of the will: whatever the child would have taken in intestacy (intestate share) = vague + can completely overturn an estate plan.

(a) Enough cases in OK and other jurisdictions to put a person on fair notice to expressly + clearly to demonstrate intent to cut a child out OR leave the child something little (e.g., $25) in order to prevent litigation.

(b) This type of litigation is not a “challenge” to the will.

(3) EVIDENCE – Clear & Convincing – Implication of disinheritance is not enough

(a) One of the reasons to be wary of joint-representation of spouses:

(b) Example – if a couple has non-joint children and one of them has a child the other does not know about it would be difficult to disinherit expressly w/o disclosing this information.

4. Effects of Lapse of Time

a) Context – age of a will does not affect a will’s validity. But the world around that will’s execution may have changed drastically.

(1) Time b/w T’s drafting of the will to the time of T’s death.

(2) Age of a will matter in terms of it validity? NO.

(3) Potentially – could have a time lapse of 90 years this situation

b) Construction

(1) Beneficiaries (people) – if they die before T

(2) Property can change (property) – property at time of will drafting no longer owned at time of T’s death.

(a) Do you give the beneficiary the value of the property as it would be now?

(b) Do you find like-property to give

(3) Over-arching principle is still T’s intent – what would T have wanted?

(a) Get the value of he property?

(b) Proceeds of the property?

(c) Executor to buy another one and give to beneficiary.

(4) Attorney should periodically review w/ client the will and amend and re-execute if necessary.

TRUSTS in 5 minutes

I. Defined: severance of legal and equitable titleA. Settlor chooses a trustee (legal title)

B. Settlor chooses beneficiaries (equitable title): trustee must owe duties to someone (characterizes the trust relationship).

II. 5 Elements of a TrustA. Trust intent (like testamentary intent):

B. Trust property (money, stocks, bonds, IP, clothes, real property, etc.) – anything that is considered property can fund a trust (expectancy interest cannot fund a trust b/c it is not property).

C. Trustee (can be a person, entity, or combination thereof) to hold legal title.

D. Identifiable Beneficiary to hold equitable title.1. Someone who can sue the trustee (cannot be a dog or a tree)

E. *Writing (possibly)1. Testamentary Trust: requires it to be in writing (trust created by will).

2. Trust property contains real estate = writing b/c of statute of frauds.

III. Constructive and Testamentary Trusts we discussed earlier this semester.

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A. Constructive Trust : The constructive trust theory is a device for preventing unjust enrichment by moving legal title from a person who has t.itle but should not, to someone who should. The remedy is appropriate in a wide variety of situations

B. Testamentary Trust : created by a will, which simply gives estate assets to someone to be held in trust according to directions.

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