wills_outline

8/7/2019 Wills_outline

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Introduction to Estate Planning

- How property passes between the living and the deado Intestate, by will, or by will substitutes (trusts, etc)

- Massive wealth transmission is starting to begin (baby boomers are passing)

- Wealth concentration is occurring in the US at an increasing rate (the rich getricher and the poor poorer)

- You must have more than $2 million before the estate tax takes effect ($3.5 in2009)

- P.13 Totfieldwhat is the most important for democratcy is not that there are notgreat fortunes but that they do not change hands

- The right to pass property at death is not treated as a natural law in the US, it is alaw created in statutes

Power to transmit property at death

Old View: Right of succession to property by will or intestacy of a deceased is

of statutory creation and the state may take that right away Irving Trust v. Day[3]

New View: The government cannot completely eliminate the rightto transfer property at death Hodel v Irving [3]

o Basic Rule: The right to dispose of property throughintestacy or will is a fundamental property right and cannotbe abolished. However, some changes/adjustments to thelaw can be made (in Hodel the legislation just went too far) TC had held that the P had no vested interest in the property of the

decedents prior to their deaths and the congress had plenaryauthority to abolish the power of testemantary dispostity of Indian

property and alter the rules of intestate succession (relying onIrving Trust). The COA reversed citing that the decedents had aright, derived from the original Sioux allotment state, to controldisposition of their property at death (focued on the right totransmit, rather than the right to receive)

Descend vs Devise Descend = passing property by intestancy no

written document (heir) Devise = passing property by a will (devisee) De minimus adjustments are ok Property is a bundle of sticks issue...

Issue of the Dead Hand [20]

General Rule:All kinds of restrictions are allowed in a will unlessthe condition violates public policy or a constitutionally protectedfundamental right. Donor intent governs except in extremelylimited cases. The ct cannot question the fairness or wisdom (orreasonableness). The cts main purpose is to facilitate (ratherthan regulate).


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To invalidate provision (exceptions to the general rule to strike a provision)= Look for unreasonable conditions, such as:

o Absolute or Unreasonable (i.e. total) restraints on marriage (or promotedivorce/separation) violate the fundamental right to marry and are notvalid

Partial restraints on marriage are allowed (if reasonable) Time: Marry within a certain time is ok Religious restraints on marriage are ok (this is arguably not

restricting marriage rather encouraging a certain religion)Shapira (ok to require marriage into a religious familyas long as the condition is not too unreasonable)

o Religion Requirement violate public policy and religious freedom (ie you

have to remain catholic)o Destruction of property upon death - cts will refuse to allow destruction bc

this encourages economic waste (burning a house will not be upheld) Exception: de minimus destruction (i.e. burn a diary probably ok)

o Some state laws may control (may or may not be able to completelydisinherit children / spouse)

o Racial limitations (ie cannot marry an African American is not allowed)

o Creditors Rights: May not be able to give away something that a creditor

has a right ino Illegal Activity: Cannot encourage illegal activity

o What about property without tangible waste? An unfinished work ofart, diary, notes, etc...


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Transfer of the Decedents Estate

- When someone dies...figure out where the will is, search for assets anditemize them (money, property, stocks, real estate, etc), call a localattorney in the community that has jurisdiction (call bar association),can also call the county probate clerk for more information regarding

the specific situation.

- Independent vs dependent administration independent is onceyouve been assigned by the administrator you dont need to comeback to court unless someone is challenging it; Dependentadministrators must continually check in with the court.

- Probate is completely separate from federal estate tax issues...they areentirely different

o Probate court fees, administrator, appraiser, and lawyer fees arethe only (typically) in probatemuch highter fees are possible if

you die intestate because of research needed to find heirs andthe such.

Probate v Nonprobate

Probate: Passes either under a will or intestacy, but in either case undersupervision of the court. Includes all property that is not nonprobate

o Goal: Collect and distribute assets, protect creditors, evidence transfer of

title (title clearing function)o Examples: Stock account (unless titled with right of survivorship)

JTWROS, willo Issues

Place of filing of will: Place of Domicile at time of death(primary jurisdiction) for personal property and ancillaryjurisdiction in any States where real property is located (regardlessof where you are when you die your domicile is where you live fulltime)...real property virtually always gets treated according to thelaws of the states in which they are located.

Statute of limitations to contest a will: 3 years Personal representative may need to post a bond to the ct. Keep your will at the home, safe deposit box, family members,

attorneyit must be able to be found when neededo Letters of testamentary to an executor person in charge of

administering the estate is in the willo Letters of administration to an administrator person in charge of

administering the estate is not in the will Nonprobate: Everything that does not pass under a will or by intestacy

o 4 types of Nonprobate property:

Trusts Pros: You can also have a will to cover what is not under

the trust benefit from both


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Cons: The trust is only useful for the items remembered tobe put in the trust

Right of survivorship assets automatic passing on death(joint tenancy), i.e. checking accts and real-estate

Certain items of personal property cannot be titled with

joint tenancy with right to survivorship (i.e. for de minimusitems, possession alone is evidence of title ie clothing,furniture, etc.)

In general we do not worry about personal property (unlessin situation of family squabbles)

o Exception for some personal property: We do worry

about items that are more expensive to track theownership chain (for example historical art)

Assetspayable upon death - Aka Contracts payable upondeath (like life insurance, 401kunless no beneficiary designated,pension plan, payable on death type accounts) ASSETS

PASSING VIA CONTRACT UPON DEATH Life Estates and remainders

o Other options to avoid probate Small estate exemption: state law rule which allows bypassing

probate if the estate is worth less than a certain amount of money Transfercar title by affidavit that you are the heir and the death

certificateo Nonprobate assets cannot be disposed of by will: Ie cannot change the

terms of a life insurance contract with language in a willo Most property in this county transfers under some form of nonprobate

action

o Nonclaim statutecreditors have a limited time to file to reclaim debts ofthe deceasedo Much more complicated if you have minor children involved...there would

be some question as to wherther you can simply waive the childs rights toaccess to the inheritance. May need to appoint a guardian to protect theinterests of the children and prevent an issue of conflict of interest

o Real property not passing under joint tenancy must (normally) be passed

through probateo Regardless of probate/nonprobate...you always want to create a will (it is a

good catch all for your interests, both present and future, a good safety netfor anything that you were unable to foresee)

NOTES- Personal representative finds and determines the extent of assets

o Charged with repaying creditors

o Asked to provide a bond...will can waive necessity of bond

- An estate cannot close with some sort of accounting back to the Probate court (allcreditors taken care of, titles cleared, etc...)


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o Court must accept the final accounting and discharge the representative

(up until that point they are not off the hook)- A probate court can interpret and enter wills but for malpractice claims it must be

heard by courts of general jurisdiction

Professional Responsibility Theories of Attorney Liability: (Simpson v. Calivas)

Tort / Negligence Theory = negligence plus attorney owed duty to P (dutyrequires some sort of relationship which creates such a duty)

o Majority / modern trend: Attorney has a duty to exercise due care to

intended beneficiarieso Minority Common law: protects attorneys, no duty to intended

beneficiaries (only to testator client) Contract Theory = must show privity of contract (lack of privity is the main

argument made by attorneys) (privity requires close/direct relationship)o Majority / modern trend: Third party beneficiary to the K can sue the

attorney Simpson (ct allowed beneficiary to sue attorneyfor malpractice)...exception to the privity rule.

o Minority Common law: protects attorneys, no privity with 3d party

beneficiaries Attorney could be sued for both: There is a clear duty to both the client and

the beneficiaries Conflicts of Interest: (Hotz v. Minyard)

o Rule: MPR 1.7: a lawyer shall not represent a client if that representation

will be directly adverse to another client unless the lawyer reasonablybelieves the representation will not adversely effect the relationship withthe other client AND each client consents

o Attorneys owe a duty of good faith and to avoid misrepresentations totheir clients Hotz (conflicted attorney liable formisrepresenting facts to client)

o Options when there is a conflict (i.e. 2 of your clients haveopposing interests): Majority view: obligation is to protect the confidence and

withdraw without disclosing the confidential information Minority view: lawyers duty to the non-disclosing partner is higher

than any duty of confidentiality so attorney would be required todisclose i.e. Ws infidelity to H when W and H are both clients

Other option: balancing test

Known v unknown harm of revealing, do whatever causesthe least harm

o Rule of thumb for conflicts: if representation is to continue be safe and

give full disclosure and get consent of both parties (keepeverything visible and make sure parties are aware of thecircumstances)

o Always identify who is the client...our duties andobligations are always owed to our clients (just need to


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identify who they are...can be confronted with the entirefamily who can have competing interests)

o Joint representation becomes a real problem with thelawyers responsibility of loyalty and confidentiality towardsthe client

Make sure you get consent and disclose the fact that youare representing both individuals

Intestacy: An Estate Plan by Default

The Basic Scheme

Intestacy applies to Probate Property all property that is probate will pass byeither:

o Intestacy default rule (if you dont want that you can just write awill)...if you do not do anything, the will the law writes for you (if youdont write a will the law will write one for you) covers everything not

covered in the will Statutes of descent (real property) and distribution (personal

property) - UPC 2-101ao Partial Intestacy anything not covered under in the will is covered by

intestacyo Will should have a residuidary clause which would cover anything not

coverd by the written instrument...a good catch-all Heirs...no live person has heirs (Heirs apparent (presumptive) only

o An heir apparent has a mere expectancy not an interest at law and

since it cannot be transferred- Estates and Protected Individual Code (EPIC) another version of the Uniform

Probate Codeo Epic will not be on the exam (Prof does not test on Michigan law, she is

merely telling us the references and how it compares to the UPCo The UPC and the EPIC are very similar

MI EPIC became effective in 2000 and was revised in 2004 MCL 700.1101 700.8102 (EPIC) MI court rules can be found at MCL 1.108 8.302 ICLE Institute for Continuing Legal Education

o Has a handy EPIC guide

- Real property is going to be subject to the laws of the state in which it islocated...personal property is subject to the state in which the deceased is located

at the time of death Intestacy never benefits in-laws (especially son/daughter in-laws)! Uniform Probate Code: (very black and white...if you dont like how they work

then just write a will so that you dont depend on them)o Intestate Share: Any part of the decedents estate that is not handled by

a will pass according to the state intestacy law and a will may expresslyexclude an individual otherwise entitled to an intestate share UPC 2-101


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Negative wills are allowed in order to disinherit achild from his intestate share UPC 2-101b (only theUPC...not traditional rule) Michigan law follows theUPC

o Share of Spouse: Spouse gets 100% IF no parents alive and all

descendents are also descendents of the surviving spouse, otherwisespouses share incrementally decreases UPC 2-102 If parents are alive then she gets the first $200,000

+ the first of the remainder if not children and atleast one parent survives

o Share of Heirs other than spouse (remaining estate afterspouse gets her share, if applicable): Estate will pass to the firstsurviving relative, issue then parents, then grand parents. UPC 2-103

o No Taker: If no taker found, then the intestate estate passes to the state(escheat). UPC 2-105

Jurisdiction

o Real property is always subject to the laws in the state which it islocated

o Personal property is disposed of under the laws of the state you aredomiciled (normally where your permanent residence is)

o UPC is more generous than many states in the union...in many states (even

with surviving children) the surviving spouse will not get a 100% of theestate. They will split the estate between the children (by guardianship)and the wife. MI generally follows the UPC in these instances (but notspecifically...so read EPIC if giving advice)

- Common law vs community propertyo Common Law

Separate Property System (Michigan)o All of the S.W. States use community property

Compoletely different from separate property system.o Virtually every question about how a spouse gets/inherits property will be

different whether it is a community or common law property jurisdiction.A MI estate plan is drastically different than a TX system...can have hugeimpact on snowbirds.

Spousal Share

2 elements required to qualify for spousal intestate share: Marriage and Survival Marriage Requirement: Generally must be validly married to be

considered a spouseo Common law marriage: live together long enough to be considered a

married couple Rule: if the state recognized CL marriage then it is

indistinguishable. Risk: if anyone wants to challenge thedistribution of the estate, CL marriage is easy to challenge (i.e.decedents children by a prior marriage). Ie get an affidavit toevidence that the decedent was the spouse


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o Same sex couples: marriage where allowed by state law

A domestic partnership statute may allow intestacy in aminority of states.

Much safer route: do a will for a same sex couple bc intestacyfor same sex couples is a fuzzy area

o

Bigamous marriage (multiple wives/husbands): Effect on intestacy: thespouse who is knowingly entering into a bigamous relationship will beexcluded from intestacy (ie the 2d marriage is not valid)

o Married but separated are still spouses until divorce entered some

states may recognize spousal abandonment Survival Requirement: Spouse must survive the decedent (without

simultaneous death statutes then the dead spouses estates would receive theother spouses estate

o Main problem: proving when someone survives another when TOD is

difficult to determineo Actual Survival Common law:

Must prove by preponderance of the evidence (i.e sufficientevidence) that spouse survived a second later otherwise thebeneficiary is treated as if predeceasing the testatorJanus (ctfound W survived H so estate first went to W thenWs heirs)

o Actual AND Legal SurvivalModern approach / UPC /Revised Uniform simultaneous death act (USDA: The UPC requires the taker to prove by clear and convincing

evidence that they survived 120 hrs (5 days) past 1st

decedentUPC 2-104 (actual survival alone is not enough)and UPC 2-702

Most wills will actually specify an even longer period of time(60 90 days)...so there is no confusion or a person put onrespirator just to satisfy the period before pulling the plug.

What is dead? Depends on the jurisdiction...and must bevery cautious when determining when death occurs (braindead, not breathing on own, etc...)

Can set type of determination and time periods in will if youdesire

Calculating Spousal Shareo UPC 2-102 (favors surviving spouse):

Surviving spouse takes 100% if:

No surviving issue or parent of the decedent OR Surviving spouse is also parent of surviving issue and no

other surviving issue UPC 2-102 Spouse gets


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o Spouse and 2 adult children from prior marriage

Concern: that the step parent will not be as caring for the childrenof the prior marriage and the decedent would have preferred totreat all the children equally see 2-102(3)-(4) which decreasesshare if stepchildren are present

Community property Share (not MI, only 9, mostly western, states in thecountry)o If you have briefly resided while married in one of these community states

that person may have a claim to propertyo Community property: anything acquired by gift or came into the marriage

with is your separate property, BUT any income you have during amarriage does not belong entirely to the earner, rather, 50% to you and50% to spouse instantaneously.

Share of Descendents / Issue (blood relatives)

Rule: Anything that does not go to the spouse is divided underUPC 2-103

o If there are children, the children and their descendents will inherit to theexclusion of all others

o Basic case: Spouse, then children and other lineal descendents

If there is a question as to whether someone qualifies as issue, see transfers tochildren

Basic Systemso English (strict) per stirpes: make the first division of the decedents

property at the first generation whether alive or not and then dropshares by bloodline. If not alive, then shares are only divided if dead andwith issue A dies; children B C D, C dies with children E and F

B will get 1/3, E 1/6, F 1/6, D 1/3 Rule for Strict - Divide based on the # of children either

living or dead (with decendants)o Per capita with representation (modern per stirpes): Make the first division

of the decedents property at the 1st generation where there is a live taker;the shares then drop by bloodline A dies; Children B C D, C dies with children E and F, D dies with

child G, B dies (no children) Modern: E 1/3 F1/3 and G 1/3 Strict: E F and G Rule for Modern: divide at the first generation which

you have living takers. Here the entire first generation wasdead so divided at the 2d generation

o Per capita at each generation (UPC 2-106): Make the first division of the

decedents property at the 1st generation where there is a live taker; oneshare to each alive taker and one share to each dead taker with issue; mysummary: look at each generation separately and divide equally. A dies; Children B C D, C dies with children E and F, D dies with

child G, B alive (no children)


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Generational: B 1/3 E 2/9 F 2/9 and G 2/9o All grandchildren take equally (does not matter the

number of siblings for each child)o Divide at first living generation. Add all shares of

deceased with issue and divide among 3 generation

equally Strict: B 1/3 E 1/6 F 1/6 G 1/3

No surviving descendents where does the property go? Ancestorsand Collaterals

o Go to parents (go up if there is no one alive below you to collateral

relatives) UPC approacho If there are descendents (at least one), nothing will go up to your parents

in most stateso If no parents, then UPC uses the table of consanguinity [79]

1st Line: No spouse, no children, no parents, then it will go toyour brothers and sisters and their children (1st line collateral)

works in all states...once you knock out spouse, children, andparents

Collateral relatives are not children, or grand/great-grand childrenor parents and grand/great/great-great grandparents

If only child...then look to the following systemsParentelic system: moving by lines of parentelas out -

closer lines = winLook for the closest in kinship look for the living person

with the smallest numbero BUT When all else fails, the UPC stops at the point you get to

grandparents so you avoid the laughing heirUPC 2-103 it then

escheats to the state...

Transfers to Children [83]

Generally: To qualify as issue and inherit, a parent-child relationship must beestablished (see meaning of children below)

Whole and half-blood relatives [83]o English law put focus on blood relations only and disregarded other types

of relations ie adoption/halfbloodo Under American law half blood (one parent in common) and full blood

(both parents in common) ok (state laws differ and half bloods may bedisinherited in a state like Mississippi if there are whole blood relatives)

UPC 2-107: Relatives of half blood inherit the same as if they werefull blood

Meaning of Children (Adoption)

Adopted [83]o UPC Rule: The adopting parents step into the shoes of the natural

parents. Adoption severs the parent-child relationship with the naturalchildren UPC 2-114(b) Transplantation Doctrine - severing


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from one family tree to be transplanted onto another(considered harsh...but followed by some states). Exception (modern trend): A stepparent spouse of the natural

parent adopting does not sever the ability to adopt from andthrough the natural parent which is the same as the stepparent (i.e.

children can inherit through natural and step-father) UPC 2-114 /Rejected by Strict Rule in Hall (Adopted children loseall right of inheritance from or through their naturalparents)

The concern is that the adoptive children would besuperior to natural children and be able to inheritthrough two lineages...buy virtue of adoption you getin a better position

o Adult Adoptions: Generally there is no distinction between adoptedminors and adults General Rule: Adult adoptions are allowed but inheritance

rights may be limited if the adoption occurred solely to qualify theadoptee as an heirMinary (the ct held that when anadoption is made solely to bring a person under awill/trust that would thwart the testators intent thenthe inheritance should not be allowed)

Purpose of adopting adults: Preventing will contests: forces collateral relatives to

challenge the adoption bc they would not be takers underintestacy bc of the adoption; the adopted adult is now achild who takes the estate in its totality, assuming there isno spouse, and no one can challenge that.

Bring people within the terms of a class gifto Minary case- held, that when an adoption

is made solely to bring a person under awill/trust that would thwart the testatorsintent in a preexisting document, thenthe inheritance should not be allowed

o Doris Duke Case: adoption cannot be revoked and

is not the best way to get around a will Common Law Limit:

Cant adopt a lover Adopting a spouse: states vary on this

Safety Net is Power of Appointment- Provision in a willor trust you give the last beneficiary the right to direct theremaining estate; a way to cover occurrences that you cannotanticipate

You are better off doing this than assuming acourt will act in a certain way


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o Stranger to the Adoption (mainly old law that courtsdislike): The adopted child can only inherit from the adopted parents notthe adopted parents relatives (i.e. not through the adoptive parent). [89] Everyone other than the adoptive parents was a stranger to the

adoption

Trend against stranger rule to treat adoptive childrenindistinguishably with natural children An adoptive child could be taken into account as long as

born before the testators death (policy: if testator wanted toexclude he could have at this point)

End result: Stranger to the adoption rule hasgenerally been overruled

Presumptively adopted children are included inclass gifts and included in estates throughintestacy

o General Problem with Adoption:

Adoption is a very blunt instrument, and can result in a multitudeof unintended consequences; should be used as a tool of last result.o Adopting out of a class gift (ie to my children or issue)

[92] can be a problem for those adopted children In General: Based on the transplantation theory (adoption

completely severs intestate ties with natural parents), and in effect,when you are adopted you are no longer eligible to receiveinheritance through your natural parents

Courts are split as to whether this applies- Dependingon our adoption statute, an adoption statute can sever therelationship to the natural parents relatives. Should it also sever

your entitlement to a class gift? Look at donative intent. If theperson was alive before the testators death, then the person waslikely intended to be included. Example: H has child A. A isadopted by 3d party. H has child BandC. H executes will leavingestate to his children. Does this include all biological children -ie A who was adopted out of the family?

o Equitable Adoption (Based in Contract Law) ONeil Rule : Equitable adoption requires (1) an agreement b/t the

natural (or Legal) and adoptive parents to adopt the child(consent/contract between persons able to contract for the child),(2) natural parents giving up custody, (3) child living with adoptive

parents, (4) adoptive parents raise the child as their own ONeil(finding that #1 was missing because natural parents were dead sono equitable adoption)

Dissent in ONeil: (Substance over form) Arguments aremade that it would be better if we actually looked at therelationship instead of taking a strict contract theory. Applya balancing test to determine that there is effectively a


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parent child relationship (argues that equity considersthat done which ought to have been done)

Note: The ONeil case cuts against the whole purpose of havingequitable adoption which is to look beyond the formality ofcontract law, and to look at the relationship, but instead applies a

strict contract consent standard. When equitable adoption occurs...courts will typically not allow

the adoptive parents to adopt from or through the child, only theother way around in order to benefit the child

Posthumous children (children born, but not conceived via technology afterthe death of a parent) p.99

o Underlying Rule: If it is to the childs benefit to be treated as a child ofthe marriage it will be done so as long as the child is born alive and mustbe born within a statutorily determined period of time (usually 280 days)

o General 280 Rule (traditional) : If a W gives birth to a child within280 days of Hs death, there is a rebuttable presumption that the child is a

natural child of the deceased H. If greater than 280 days, the burden is onthe child to establish the relationshipo Uniform Parentage Act : Rebuttable presumption that a child born

within 300 days after the death of her husband is a child of that husbandUPA 204 many states have accepted this

o Possible issue to take out of posthumously conceived children: Eligibilityfor social security benefits depends on whether a state allows aposthumous child to inherit (inequality depending on what state you areborn)

o The rules are designed to capture the child as in being so that they may

be advantaged in intestancy issues

o Reproductive Technology throws a monkey wrench in all of this... Non-marital Children (not born in a marriage) p.100

o Common law: Cannot inherit from the father or mother (harsh rule and not

used in the USA)o American rule: Allows a child to inherit from mothers but state vary with

regard to paternity/fathers (w/o further evidence) There is a wide division among the cts whether child can inherit

from father (states may allow the father to prove paternity) Many states will only allow the mother to inherit FROM

the child and not the father...even if the child can inheritfrom the father

UPA 204: presumes fatherhood of a child if: 1) while child is lessthan 2 yo he lives in the same household and openly holds thechild out as his natural child OR 2) the father acknowledgespaternity in writing.

Reproductive Technology (a type of posthumously conceived children)o Potential Rules to apply (this is an unsettled area):

Balance the Interests: best interest of child, interest of state(orderly administration of estates), decedents reproductive rights


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(what Woodward turned on...ultimately the court remands formore discovery about the intent/wishes of deceased husband)

Woodward dealt with SS benefits of children born/conceivedwell after (2 years) after the death of the husband. SS benefits aredolled out based on the intestancy rules of the state (if filing based

on survivor benefits) Woodward Rule (p.102):

(1) Genetic relationship must exist between child anddecedent

(2) Decedent affirmatively consented to the conceptionAND

(3) Decedent consented to support the child Restatement 3d of property [109]: Child has to be born within a

reasonable time in circumstances indicating the decedent wouldhave approved of the child to inherit

UPA 707 (stricter test): If decedent dies before implantation then

the presumption is that the decedent is not the parent unless there isconsent in a record that deceased okd child CA statute: Clear and convincing evidence that a person could use

the genetic material. Notice upon the executor or administratorwithin 4 mos of death and child be in utero w/I 2 yrs.

New Forms of parentage same sex and surrogate motherso Where one partner has a genetic connection and the other partner adopts

the child legally, then both parents can then be treated as parents and allowthe child to inherit through intestacy from both

Look carefully at UPC 2-114(b) Whoever is established to be the parent in family law considerations will most

likely be established to be the parent for inheritance issues.

Advancements [114]

Old CL Rule: If an individual dies intestate, property (any life-time gift) givenduring the life of the decedent is presumed to be an advancement (prepayment ofthe inheritance) a presumption in favor of finding an advancement

oChild would have to provide a writing to prove contrary intent (for it not

to be an advancement) New Statutory Rule: The presumption has been reversed; it is not an

advancement unless it is declared as such. Assume it is a gift - UPC 2-109 presumption against finding an advancement most states have

accepted this.oA gift is an advancement only if the decedent puts it in

writing as such or if the giftee accepts it as anadvancement

Guardianship and conservatorship of minors

What happens when children do inherit: A minor child does not have legalcapacity to handle their own affairs


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2 sideso Guardianship ofperson

If you have a minor child and only one parent dies, the other parentbecomes the guardian

If both parents die without a will designating a guardian or a

standalone designation (allowed in some states), the ct will appointa guardian from the nearest relatives.o Property management

Guardian (this is very restrictive and time consuming) The goal is to avoid the guardianship of the property (bc of

the time consumption and complexity) The book says the guardian never takes title to the property

(only can use the income but not the principle) Guardianis expected to deliver exactly what was given.

Conservatorship (modern trend many states have adopted this) Conservator hold the title as a trustee for the minor

and is a fiduciary of the estate with responsibilities to theminor Annual accounting still required but every decision does

not need to be approved by the ct (just before ct once a yearfor check-up for accounting purposes)

Protective order(MI law) Allows the ct to issue a person to do something with

property (a step below a conservator). For example if thereis only one piece of property, protective order may allowsale w/o guardianship or conservatorship

Custodianship (under the uniform transfers to minors act)

Simply holds property for the benefit of the minor Simple to accomplish, ct approval not needed formanagement decisions

Most wills and trusts that distribute property to the minorcontain a facility of payment clause that gives money tocustodian to hold money for the minor

Property goes from custodian to the minor when age 18 or21 is reached

Trust: Better option than all of the above mostly bc the time ofdispersal (can be for any age...not just 18 or 21) can be controlledbetter and the amount can be controlled

Potential State Law Options: MI allows up to $5000 to a minorwho is married, an individual having care or custody of the minor,to the guardian of the minor, or to a bank account in the guardiansname

SS benefits can be important to a minor also these can be paid to arepresentative payee

o In the case of an incapacitated person, another individual can apply to the

SS administration and provide evidence of incapacity (minor or otherwise)


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and make payments to the representative payee for the incapacitatedpersons benefits

o This allows avoidance of guardianship of the estate if SS benefits are the

only assets

Bars to succession

Homicide

Rule: A killer shall not take from their victim if the killing was intentional orfelonious

o Exceptions: Circumstances that do not bar inheritance: self defense,

involuntary manslaughter, insanity, or if the killer entitled to the propertyregardless of the inheritance Mahoney (killing must be willful tobar)

o Misconduct short of homicide that may bar: Elder abuse,neglect, or abandonment may also bar inheritance Cal Prob Code 259

Criminal conviction is not required for slayer statute to apply preponderance of the evidence is required UPC 2-803 What Property: UPC 2-803 bars the probate and nonprobate property

succession to a killer (same under MI law) Heirs of the Killer: Killer treated as if the killer predeceased the victim, so if

the killer is barred the next in line takes. UPC 2-1106. The heirs are innocentand they should not be blamed for the killing (CA approach - majority)

o Minority IN approach: neither the killer or the heirs could inherit

If no slayer statute (most states have one...if not all states), the cts are splitbetween three apparent options

o Decedents property goes to the killer (cts should not legislate, already

being punished for the crime and this would amount to doublepunishment)

o Killer is barred (public policy requires so...basic equity requires that they

shouldnt be able to kill someone and get their money) slayer is treatedas to have predeceased the dead person possible judicial activismcriticism

o Legal title passes to the killer, but a constructive trust is imposed so that

the property is distributed to the next in line to take Mahoney (middleground that holds the property for the next set ofheirs)...this court applies this one.

Constructive trust...equitable concept that we have

that helps us to fix things that are evidently wrongwithout upsetting the statutory scheme while stillgetting to what the court believes is the correctresult.

Constructive trusts are almost the same as thetrust but without any actual trust document

What about non-probate transfers...it depends. The UPC fixesthis 2-803 by barring a killer from probate and non-probate


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property. So regardless of will/law then the killer is treatedsimilarly. The killer as having disclaimed the property...thedisclaimant is treated as predeceased the victim.

What happens if the next people in line are the killers heirs? A criminal conviction is not required for a slayer statute to

apply...different results for criminal trial vs probate arepossible.

Disclaimer

Old Common law did not allow disclaimer (intestate = title passes even ifdisclaimed; will = like a gift & could be refused)

Modern Rule (virtually every state): treats the disclaimant aspredeceasing the decedent so the property simply passes to the next person in line

When does the disclaimer need to be made: No time limit under UPC 2-1105 to 6,BUT IRS requires w/i 9 months to avoid gift tax, MI law: it is intended topermit a disclaimer in all cases in which the IRS would permit a qualified

disclaimer and allow in other circumstances Creditors of the disclaimant:

o General Rule: When disclaimed, the property interest does not reachthe disclaimant; as a result the disclaimants creditors cannot attach theproperty (the disclaimer relates back) Exceptions:

Minority of states do not allow an insolvent debtor todisclaim (MI law doesnt directly deal with it...it is neutralon the disclaimer effect on creditors)

Federal Government as a claimant for tax or Medicaidreimbursement may be able to reach disclaimed property

Drye / Troy (holding gov can attach disclaimedinheritances)

o Constructive Receipt...if you can put your hands

on the money...the fact that you are trying todisclaim it doesnt protect the funds from the IRS

Distribution upon disclaimer : follow UPC 1106 (like strict per stirpes)o The 1990 UPC distribution by generational would allow the children of

the disclaimed beneficiary to get a disproportionate share in certaincircumstances

o Law doesnt want to allow a person to change the allocations amongst the

relatives of the deceased...to keep a person to change the effect of decent

by disclaiming

Review from Tuesday

- Taxation Issueso When you die...if your taxable estate (bank/stock account, etc) is over the

applicable federal state tax exemption amount your estate will end upbeing subject to federal and state estate tax


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At the federal level alone can be up to 50% of the estate, you thenadd state tax on top of that

Wills: Capacity and Contests

Mental Capacity [141]

Test of Mental Capacity

Requirements to execute or revoke a will (determined at the time of making /revoking the will) UPC 2-501

o Older than age 18 (an adult) ANDo Sound Mind: Capable of knowing and understanding in a general way

(doesnt mean you have to know...just capability of knowing): (1) the nature and extent of his or her property, (2) (their heirs) the natural objects of his or her bounty, (3) the nature of the testamentary act that he or she is

performing, AND (4) how all these relate to constitute an orderly plan of disposition

of property Capable: If you are capable of knowing and

understanding this is enough even if you have noidea which piece of property you actually own; It is finethat you did not pay attention as long as you are capableof understanding.

Knowing and understanding in a general way: Itis ok if there is not a careful inventory

The test is not if you actually know or understand, ie wills

are typically not invalidated due to mistake. Note: Being of sound mind is a low threshold to meet(eccentricity will not invalidate a will)

o Even if one lacks capacity for other purposes (K

drafting), one may still be competent to draft a willWright (bc once dead no risk to the decedent)K>Testamentary>Marriage capacity

Different Mental Capacity Standard During Life v Death Rest 3d of property8.1: This covers all of the mental capacity

o If a will orRevocable Gift (if you can get the money back) thencapable of knowing and understanding in a general way is sufficient for

mental capacityo If a gift is Irrevocable (inter vivos transfers, lifetime transfers) must

have: (1) The mental capacity to make or revoke a will, AND (2) Understand the effect of the gift will have on your financial

security and those that depend on you In re Estate of Wright (1936)


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o Facts: Wright died 16 months after executing a will that devised a house,personal belongings and money to his friend (about $10k total), CharlotteHindmarch, who was named as the executrix. T also devised a house to hisdaughter, his interest in an estate to his granddaughter, and one dollar tohis grandson and several other people. Ts daughter contested the will. Ts

daughter contested the will. A notary had prepared the will and noted thatit was the oddest will they had ever seen. Both witnesses and the notarytestified that T was of unsound mind when he executed the will. Otherrelatives and acquaintances also testified that T was not of sound mindwhen the will was drafted based on Ts peculiarities, his drinking, an oldhead injury, a surgery several years back, and isolated idiosyncratic acts.Petition for admission of the will to probate was denied on the ground oftestamentary incapacity. The executrix appeals.

o Held, evidence of a testators isolated peculiarities and unusual life style,without evidence of insanity, hallucinations, or delusions, are insufficientto deny probate of a will.

o

Reasoning: In a will contest, sanity is presumed, and the one

contesting the will has the burden of proving that thetestator was of unsound mind when he executed his will.

The drafter of a will and the subscribing witnesseshave a duty to be satisfied of the testators sanityprior to giving their stamp of approval and verity to thewills execution. IF they testify later that the testator was ofunsound mind, their testimony will be subject to closescrutiny and suspicion.

Isolated acts, idiosyncrasies, moral and mental irregularities, or

departures from the norm cannot destroy testamentary capacityunless they directly influenced the testamentary capacity unlessthey directly influence the testamentary act. There wasno medical testimony and no evidence ofsettled insanity,hallucinations, or delusions.

T knew the extent of his propertyo Importance: Presumption is in favor of capacity and it is OK to be

idiosyncratic, and to leave your property in odd ways, even incontravention of public norms. BUT the more unusual a will, the moreprotective you need to be over your will.

o Ethics Caveat: If a client does not have capacity to enter into a lawyer

client relationship, you cannot draft a will for someone. Burden of proof: presumptionthat the decedent is competent and

the contestant must show a lack of competency Wright Ethical Duty: The drafting attorney has an ethical duty to asses the capacity of

the testator Defect in capacity: Even if a testator has general testamentary capacity a

person may suffer from a a defect in capacity that may invalidate all or part of thewill


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o Examples (see infra)

Insane delusion Undue influence Fraud

o Remedy: the ct will strike as much of the will as was caused by the

defect Why Require Mental Capacity:

o (1) To make sure the will represents the testators true rational desires

o (2) Mentally incompetent man or woman is not a person for legal

purposes; sanity and personhood are intertwinedo (3) Mental capacity protects the decedents family; Via a theory of

reciprocity an heir apparent provides care and support for the aged withthe expectation of receiving their inheritance. A testators insanity shouldnot be able to defeat or deter such a necessary principle.

o (4) To support the public acceptance of law by requiring reasoned

decisions by giving heirs their just deserts

o (5) Provides a sane person assurance that the disposition the testatordesires will still be carried out if the testator later becomes and sane anddrafts a subsequent will

o (6) Protects society at large from irrational acts

o (7) Protects a senile or incompetent testator from exploitation at the hands

of a cunning person.

Insane Delusion [148]

Distinction between insane delusion and a mistake (Its theability to correct)

o Delusion : False perception of reality which the testator adheres

despite all evidence and reason to the contrary, the testatorwould still not change her opinion and it is an insane delusion (falseperception of reality). What Fails: Only the parts of the will that are a caused by the

insane delusion fail for lack of testamentary capacity No Effect on Disposition Exception: If the insane delusions

do not affect the dispositions, then the entire will stands What Happens if Part/Whole Fails: The failing portion or

the entire will goes by state law governing intestacyo Mistake will not invalidate a will in most jurisdictions; If it is a mistake,

the testator would correct if in fact you intended to do this a

mistake can be corrected Causation is the problem: You must show that the actual testamentary

decision was based upon, or might have been, the insane delusion.o BUT, Most Courts Will Presume Causation if: There is a

delusion, and it might have cause the disposition.o SOME COURTS...will say if there is any reason for you

holding to an insane delusion that it will hold the willprovision valid


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BUT...most courts use a reasonable/rationalperson standard and if they would not hold to thatinsane delusion then it will not be valid

Test for Insane delusion: Did the evidence of the insane delusion (1)demonstrate insanity Rational person test (2) which caused the disposition at

issue.o In re Strittmater (1947)

Facts: Strittmater never married. She lived with her parents untiltheir death and was devoted to them and they to her. Four yearsafter their death, she wrote that her father was a corrupt, vicious,and unintelligent savage, typical of the majority of his sex, and ona photograph of her mother, she inscribed, moronic she devil. Tsdealing with her attorney, over a period of years, were normal. Tbecame a member of the National Womens Party and volunteeredone day a week for at least two years. In her will, she left herestate to the party, as had been her expressed

intent. T died one month after her will was executed. The willwas admitted to probate. Two cousins challenged the will, allegingit was a product of Ts insanity. A lower court set aside the will.The lower courts decision is appealed.

Held, a will that was executed by a person with insane delusionsabout men be admitted to probate.

Reasoning: Ts female physician opined that T suffered from a split

personality T had been a member of the party for 11 years when she

wrote: it remains for feminist organizations like [the party]

to make exposure of womens protectors and lovers forwhat their vicious and contemptible selves are. It was Ts paranoiac condition, especially her

insane delusions about the male, that led herto leave her estate to the party.

o In re Honigman (1960) Insane Delusion of Non-ExistentFacts Facts: Prior to death Honigman told friends and strangers he

thought his wife to be unfaithful. This suspicion became anobsession, though he was rational in other respects. Honigmancommented once that he was sick in the head and

that he knew something was wrong with him. Decedentinstructed his attorney to cut his wifes share of his will to thestatutory minimum plus $2500, and the rest to his survivingbrothers and sisters, or if they predecease their descendants perstirpes (proportionally divided between beneficiaries according totheir deceased ancestors share), upon his wifes death. Proponentsof the will adduced evidenced which they thought showed areasonable basis for the decedents belief, including an anniversary


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card to the wife from a Mr. Krause, evidence that whenever thephone rang the wife would answer it, and evidence that Mr. Krausecame over to the decedents house one night while the decedentwas out. When the will was offered for probate thewidow filed objections based on insane delusion. The

jury said he was not of sound mind and denied probate, theappellate court reversed upon law and facts (substituting new factseven), and this appeal followed.

Held, If a person believes facts that are against all evidence andprobability and conducts himself, however logically, upon theassumption of their existence in making his will, he suffers from aninsane delusion; Judgment reversed and new trial ordered.

Rules: Insane Delusion Test: If a person persistently believes

supposed facts which have no real existence except in hisperverted imagination, and against all evidence and

probability, and conducts himself however logically,upon the assumption of their existence, he is, so far as theyare concerned, under a morbid delusion; a delusion inthat sense is insanity, though on other subjectshe may reason, act and speak like a sensibleman.

Might Have Caused Enough: Any part of a willthat was caused ormight have been caused by thedelusion fails for want of mental capacity.

Burden Shifts: When someone challenging the Testatorsmental capacity on the basis of insane delusion and has

presented evidence reflecting the operation of the testatorsmind, it is the proponents of the will duty to provide afactual basis justifying the alleged delusion.

Jury Question: When evidence of a Testators delusionalstate at the time of drafting a will exists, the courts shouldplace the issue of capacity in the jurys hands.

Dead Mans Statute (Minority Rule): Evidencebased on a personal transaction or communication betweenthe witness, an interested party, and the deceased person isinadmissible and should be excluded.

o In most states this does not apply to probate because

a testators will is not a transaction orcommunication between the testator and thelegatees

o Where dead mans statutes still exist, court construe

them narrowly Importance: It does not matter whether his insane delusion was

based in reality, just whether a reasonable person would havebelieved him.


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Reasoning: General rule is that if a person persistently believes

supposed facts that have no real existence except in hisimagination against all evidence and probability, andconducts himself however logically, upon assumption of

their existence, he is under a morbid delusion, and thatperson is essentially mad or insane on those subjects. The issue of the decedents sanity was one for a

jury to resolve, and there were sufficient facts to requirea jury decision.

Proponents argue that even if Honigman was laboringunder a delusion, other reasons support the validity of thewill; this is not the case. A will is invalid if itsdispository provisions might have been causedof affected by the delusion.

The dead mans statute which excludes the testimony of

witnesses concerning a personal communication betweenthe witness and the deceased, was misconstrued to permittestimony of P when an objection to her testimony and beenproperly raised.

Fulds Dissent: The evidence adduced utterly failed to prove

that the testator was suffering from an insanedelusion or lacked testamentary capacity, and much of thetestimony was improperly admitted.

It does not follow that [the testators] doubts of fidelityevidence a lunacy

o

Demonstrating an insane delusion (Split in Jurisdiction) Majority Rational Person Test: if a rational person would find

the same thing, the person is not insane; but if a rational personwould find the delusion to be insane, regardless of any factualbasis, he delusion will be held to be insane

Minority Factual Basis Test: if there is any factual basis, somejurisdictions will not consider the person insane (This is moreprotective of testators intent)

Causation Nexus: Even if the testator suffers from an insanedelusion, the insane delusion is irrelevant unless it is shown thatthe belief caused the testator to dispose of his or her property in a

way that the testator would not have otherwise Majority: Might have been caused approach: The

majority of cts will presume causation as long as you prove(1) a delusion and (2) an unnatural disposition that mighthave been caused by the delusion. Cts presume the insanedelusion caused the disposition. Honigman (ct foundinsanity)


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But for approach: But for the insane delusion, wouldthe testator still disposed of his property as he did

o Ie are there other reasons why the testator would

have done what he did Process:

o Look at the elements of capacity one by one to see if they are present inthe facts. If not present, then evidence of incapacity

o Also look at the factual basis and rational person tests how does the

result differ?o How much of the will was effected by this incapacity? That portion will be

stricken

Undue Influence

Defined: Mental coercion that destroyed/overcame the testators free will andforced him to embody someone elses intention in his will in place of his own.

o Requisite Mental State (Substituted Intent): this is not mywish, but I must do it

o Proof: May be wholly inferential and circumstantial Element Test- To establish undue influence one must show:

o (1) That the testator was susceptible to undue influence

o (2) That the influencer had the disposition or motive to exercise undue

influenceo (3) That the influencer had the opportunity to exercise undue influence

o (4) That the disposition is a result of the undue influence

o (Problem: DOES NOT TELL US WHAT INFLUENCE IS UNDUE) Process of Contesting a Will: Can either use (1) presumption approach or

(2) immediately allege the elementso (1) Presumption of Undue Influence- Created by showing:

1) Confidential relationship (confide in the other party) AND 2) Something more; Weakened intellect & received bulk of

estate or other suspicious circumstances (Lakatosh) Depends onthe State

o (2) Once Presumption Established, the Burden Shifts and theProponent Must Either: 1) Disprove the Elements to prove undue influence (very

difficult) OR Susceptibility: The testator was not susceptible to undue

influence Motive: The influencer didnt have the disposition or

motive to exercise influence Opportunity: The influencer did not have the

opportunity to exercise undue influence (i.e. care givingrelationship) AND

Causation: The disposition is not the result of theinfluence (Lipper)


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2) Show grantees Good Faith by clear and convincing evidencethroughout the transaction and the grantor/testator actedfreely, intelligently, and voluntarily Jackson (Ie showclean hands)

Proponent must simply show that the will is free from such

influence, as well as establishing his own clean hands This is far easier that disproving all the elements

What Happens to Parts of a Will that are Products of UndueInfluence:

o If part of a will is the product of undue influence, those portions of the will

that the product of such influence may be stricken and the remainder ofthe will allowed to stand, IF the invalid portions of the will can beseparated without defeating the testators intent or destroying thetestamentary scheme.

Restatement (Third) of Property:o 8.3 Undue Influence, Duress, or Fraud

(a) A donative transfer is invalid to the extent that it was procuredby undue influence or fraud

(b) A donative transfer is procured by undue influence if thewrongdoer exerted such influence over the donor that itovercame the donors free will and caused the donorto make a donative transfer that the donor would nothave otherwise made.

o 8.3 Suspicious Circumstances within ConfidentialRelationships to Raise Presumption of U.I. Existence of a confidential relationship is not

sufficient to raise a presumption of undue influence.

There must also be suspicious circumstances surrounding the (1)preparation, (2) execution, (3) or formulation of the donativetransfer. Suspicious circumstances raise an inference ofan abuse of the confidential relationship. RelevantFactors (not exhaustive):

(1) Extent to which the donor is physically or mentallyweakened

(2) Extent to which the alleged wrongdoer participated inthe preparation or procurement of the will

(3) Whether the donor received advice from outsidecounsel, or other disinterested advisors

(4) Whether the will was prepared in secrecy or haste (5) Whether the Donors attitude changed toward others by

reason of the alleged wrongdoer (6) Whether there is a discrepancy between a new will and

the old one (7) Whether there was a pattern of intended disposition

between wills


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(8) Whether a reasonable person would regard thedisposition as unnatural or unjust.

o Estate of Lakatosh (1994) Facts: Roger befriended the decedent Rose in her 70s, visiting

and assisting her. The facts suggest that Rose had come to depend

on Roger. Roger suggested to the decedent that shegive him power of attorney, and the decedent granted powerof attorney and devised all but $1000 of her $268k estate to Roger.The lawyer who drafted the will was Rogers second cousin, whoRoger had referred the decedent to on a previous matter. A taperecording of the decedent at the time of executing her will showedshe did not lack competence, though was easily distracted and ofweakened intellect. Roger unlawfully converted $128k ofRoses assets, $72k to a friend of Rogers who Rose had nevermet. Rose revoked Rogers power of attorney prior though died insquallor.

Shifting Burden Rule (Not the Test is EveryJurisdiction): For a contestant of a will on grounds of undueinfluence to shift the burden to the proponent to disprove the undueinfluence (through clear and convincing evidence), the proponentmust show through clear and convincing evidence:

(1) That there was a confidential relationship (2) That the person enjoying such relationship received the

bulk of the estate (3) That the decedents intellect was weakened

Held, the trial courts finding rests on legally competent evidenceand Roses will should have been revoked because Roger failed to

carry his burden of proving the absence of undue influence. Procedural Note: Proponent of the will needs to show the wills

validity prior to getting to an undue influence claim; if it is notshown to be valid, the contestant never even has to claim undueinfluence because the will was not valid from the get go.

Procedural Walkthrough: Proponent must first show validity,then the contestant can shift the burden showing a confidentialrelationship and something else, then the burden shifts to theproponent to either disprove the elements of undue influence, orshow good faith explanation (see above)

o Lipper v. Weslow (1963)

Facts: Mrs. Sophie Block (T) executed a will written by her son,Frank Lipper, a lawyer, 22 days before she died. Lipper boremalice against his deceased half-brother, who was executed fromthe will. This resulted in Lipper receiving a larger share under thewill than he otherwise would have received. Lipper lived next doorto T and has a key to her home. After signing the will, T told onewitness that she was leaving her estate to her son and daughter, andthat her other son, Julian, and his children would be excluded


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because they never showed any attention to her. The willprovided a lengthy explanation as to why julian wasexcluded from the will largely due to the unfriendly anddistant attitude T felt had been accorded to her. The children ofJulian contest the will, charging Frank Lipper and Irene with undue

influence. At trial, a jury found that Ts will was procuredby undue influence. Ds appeal, contending that there is noevidence to support this finding.

Held (Reversed): A person contesting a will on the basis ofundue influence must supply proof of the substitution of the planof testamentary disposition by another as the will of the testator,the contestants failed to do this, and there is no evidence ofprobative force to support the verdict of the jury.

Undue Influence Rule: Whether such control was exercisedover the mind of the testatrix as to overcome her freeagency and free will and to substitute the will of

another so as to cause the testatrix to do what she wouldnot have otherwise done but for such control.

Reasoning: The contestants have established a confidential

relationship, the opportunity, and perhaps amotive for undue influence. However, they must goforward and prove in some fashion that the will as writtenresulted from Ds substituting his mind and will for that ofthe Testator. Proof of the substitution of a plan oftestamentary disposition by another as the willof the Testator must be provided.

Here the evidence shows that T was of sound mind, ofstrong will, and in excellent physical condition. A personof sound mind has the legal right to dispose ofher property as she wishes, with the burden on thoseattacking the disposition to prove that it was the product ofundue influence. T had a legal right to do what she didwhether we think she was justified or not. We concludethat there was no evidence of probative forceto support that verdict of the jury.

There is testimony by three disinterested parties stating thatthe testatrix intended to disinherit Julians spouse and

descendants. Recital of Facts:

Dangerous if Listing Exact Facts; fodder for the opposingcounsel to attack capacity based on erroneous facts.

If the recital is such a big part of the will, and the facts arein error, the contestant attorney may argue that the will wasconditioned upon the erroneous facts and thus try to strikethe entire devise.


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Also a will is a public document...do you want to air yourdirty laundry

Result of undue influence REMEDY: to invalidate only the part of the will thatis the result of the undue influence

To avoid undue influence: set up a revocable trust, these are difficult to

challenge and no notice requirement (can be secret)

No Contest Clauses (Inter Rorum)

Defined: a beneficiary who challenges a will shall take nothing under the will(to discourage will contests and undue litigation) or take a token amount.

Enforceability:o Majority Rule

Courts will enforce a no contest clause unless there is ProbableCause to support a will contest UPC 2-517. (Probable causereduces the risk to the contestant of bringing acontest, but only if the contestant has a colorable

basis for the claim). IN and FLA dont enforce no contestclauses and Cali Minority rule.

Policy: do not want to shield wrongdoerso Minority Rule (more restrictive)

Enforce the no contest clause unless there is an allegation offorgery, revocation or misconduct by one involved in executing thewill (no matter the amount of evidence any hint of the aboveallegations will result in make the clause unenforceable)

Policy: avoid litigation ie in determining PC, do not want adefrauder to insert a no contest clause

Note: IF you are not getting anything under the will in the first place, the

deterrent effect of the no contest clause is obviously ineffective. How to Make Effective: Provide heirs or those likely to contest a will more

than a pure token/normative amount that relative to the overall size of the estatethat is just enough to make it worth not contesting the will, or a provision therein.

Bequests to Attorneys [167]

Majority Presumption of Undue Influence: presumption of undueinfluence when atty-draftor receives something in the will (can be rebutted withclear and convincing evidence); attys by definition have a confidentialrelationship

o Exception: when the atty is related to the testator unless the will makes

an unnatural disposition (i.e. Mr Lipper getting most or all compared toother legatees)

If you draft a will for someone (a best friend, etc) and you get a large sum ofmoney (legacy) and you are unrelated then there is a large presumption thatthere has been undue influence.

Minority Approach: Irrebuttable presumption of undue influence unless (1)atty is related or (2) independent counsel is sought Moses

o In re Will Moses(1969)


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Facts: Moses (T) was a promiscuous alcoholic in poor health.Attorney, Mr. Holland, 15 years younger than the married testatrix,was having an extramarital affair with the decedent, though he didnot draft the will. Daughter of T successfully challenged will, andHolland appeals.

Analysis: There is a confidential relationship, so we need the plussomething for the presumption of undue influence thatshifts the burden to Mr. Holland to rebut the presumption ofundue influence; The plus is that Holland receives theestate under the will.

Holland rebuts by saying he did not draft the will. Thedrafting attorney states that T was mentally competent andsober during the drafting, though did not include anexplanation of why the attorney was to receive to thedetriment of the decedents heir.

Held, Holland failed to rebut the presumption that the will was aproduct of undue influence Drafting Note: When, as an attorney, receiving a portion or the

whole estate as a result of disinheriting a natural heir, have anotherdisinterested attorney draft the will with an explanation of why theattorney is receiving, and possibly an explanation of the nature ofthe relationship as a matter of protecting the risk of contest.

Note: The attorney in this case really did almost everythingcommonly known to protect the will from an undue influencecontest.

Better Option is an Inter Vivos Revocable Trust:

Evidences that the trustor actually wanted to do this, the longer thata trust is in effect the more transactions that would have occurredinvolving the trust the less likely a court will undo all thesubsequent transactions; ALSO a trust is a private document, asopposed to a public will, and only those who know about the trustcan challenge it. Plus, the donor is still alive and able to testify indefense of sanity/no UI.

o In re Kaufmanns Will (1964) Facts: Will with an attached letter explaining abnormal

disposition of estate to his caretaker/attorney (confidentialrelationship). Will successfully challenged, Walter appeals.

Analysis: Presumption of undue influence, based on confidentialrelationship and Walter receiving the bulk of the estate,shifts burden to Walter.

Court found the will was a product of an unnatural,insidious influence operating on a weak-willed, trusting,inexperienced... testator.


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Better Option (Once Again) is an Inter VivosRevocable Trust!

Ethics problem also: Lawyer shall not prepare an instrument giving thelawyer or related person a substantial gift from a client except where the client isrelated to the donee.

Note: A parent child relationship generally does not cause a will to fail; you aregoing to receive as an heir anyway

PRACTICAL CHALLENGE NOTES: (1) Challenges are generally only effective if they are done immediately (2) Big Money/Estates are almost surely going to be challenged so an attorney

should prepare for such a contest ahead of time both in drafting the will andevidencing the donative intent.

(3) Changes made at the end of a clients life, especially if they are contrary toprevious wills/devises, are more likely to be challenged successfully.

Fraud Defined: Testator is deceived by a misrepresentation and results in something

that a reasonable testator would not have done otherwise (but for themisrepresentation). Provisions by fraud are invalid and rest stands unless the restis invalidated by that fraud and makes it inseparable from the rest of the will.

Test:o (1) Testator is Deceived, ANDo (2) Dispositive provision that would not have been there

but for the misrepresentation; PLUSo (3) Intent to deceive the testator, ANDo (4) Purpose to influence a testamentary disposition

Elementso Knowingly made a false statement to the testator with an

o Intent to deceive the testator (individual causing fraudmust know he is doing so) AND

o Purpose to influence a testamentary disposition (the falserepresentation caused the disposition) (NEED BOTH) AND

o Did influence the disposition but for the misrepresentation

Remedy/Effect: What is the effect of fraud on a will: the portion of the willthat the fraud effected will be invalidated, possibly impose a constructive trust.Court can then deny probate, or use equity to impose a constructive trust if thereis an apparent alternative donative scheme (person who committed the fraud holds

the property for the benefit of those who should have inherited) 2 types of fraud:

o (1) Fraud in the inducement: a person misrepresents facts causing(inducing) the testator to execute a will (or to prevent him from executinga will or a change to a will) with particular provisions (difficult to provecausation). Induced to execute a will a certain way bc of what thedefrauder told the testator, not a lie about the content. Testator knows heis signing a will and what is in the will. Estate of Carson case pg 208


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Causation Problem: Did the fraud cause the disposition?Difficult to prove.

This is a rarer form of fraud; Usually looks like direct, outrightlying

o (2) Fraud in the execution: misrepresent the character of content of

the instrument signed by the testator which does not in fact carry out thetestators intent. Puckett v Krida case pg 209 Examples: testator tricked into signing something that is not

their will or signing will but person misrepresents the provisions inthe document

Line b/t Fraud and undue influence: It is common to have both undueinfluence and fraud in the same case because it is a fine line and is difficult todistinguish

o Undue influence is exercising a level of control over a testator tooverride a testators free will which causes the testator to do something hewould not have otherwise done

o Fraud : the testator still has free will (in theory) it is only bc somethinghas been misrepresented and this misrepresentation causes the testator todo something that he or should not have done.

o Distinguishing : Is the will overridden (undue influence) or is thetestator being told something that is not true (fraud)

Pucketto Facts: Elderly Alzheimer's testator is afraid of being put in nursing home.

Nurse caring for testator convinces elderly woman that her family is tryingto put her in a nursing home. Testator disinherits family and leaves it to thenurse instead. Niece challenges.

o Analysis:

Testator was elderly and stricken with Alzheimers Nurse was playing on the fears and weak-will of the elderly

woman and Niece was scrupulous in upholding the wishes anddesires of her Aunt (T)

Nurses fail to rebut presumption of undue influence, but there wasalso fraud/intent to deceive; impossible to separate or distinguish ifthis is truly undue influence or fraud due to her illness.

o Held, Nurses were unable to disprove the presumption of undueinfluence, and there was also fraud of the inducement (they are similar).Diff b/twn them both is: Fraud is based on faulty assumptions and UI isnot as coercive.

Duress (Beefed-Up Undue Influence)

Defined: When undue influence becomes overtly coercive, if becomes duress.A donative transfer is procured by duress if the wrongdoer threatened to performor did perform wrongful act that coerced the donor into making a donativetransfer that the donor would not have otherwise made Rest. 3d of Property8.3c


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Susceptibility Not Required : You no longer need to show that the testatorwas susceptible, as you need to in undue influence, because everyone isconsidered susceptible to duress (susceptibility required for undue-influence)

Preventing Drafting of a Will: When a will beneficiary prevents a testator todraft a will, a constructive trust is imposed for the benefit of the intended legatee.

Pope v Garrett: Lady physically stopped execution of will & resulted in acoma/death. Ct says you can impose a constructive trust on innocent heirs(everyone who inherited under 1st will but would have been excluded under 2dwill which was never signed bc of duress) who happened to the be beneficiaries asa result of someone elses fraud for the benefit of the intended heirs because theywould have been unjustly enriched even though they did not personally executethe duress

Constructive Trust is only an equitable remedy; not a real trust, an equitable toolto move money without doing damage to anyone. Sometimes called a fraud-rectifying trust that may be imposed if the ct thinks unjust enrichment wouldresult if the person retained the property. Constructive holder must transfer to

constructive beneficiary. Latham v. Father Divine- Lady had will in Father Divines favor and wantedto change it but was threatened and died under docs hands during a surgery w/oconsent of the dead ladys relatives. Family wanted a constructive trust w/ thembeing 3d party beneficiary. Ct held that he doesnt get $ and fam gets it bc this isan attempt to prevent unjust enrichment. (A settlement was reached after thiscase). Rule: Where a devisee or legatee under a will alreadyexecuted prevents the testator by fraud, duress or UI fromrevoking the will & executing a new will in favor of another sothat testator dies leaving the original will in force, the devisee orlegatee holds the property thus acquired upon a constructive

trust for the intended devisee. A constructive trust will beerected whenever necessary to satisfy the demands of justice.

Tortious Interference with Expectancy

Exam Note: mention this is one as an additional option if one of the aboveappears.

o Advantages: a way around a no contest clause because it is not a willcontest, punitive damages, but not recognized in every state. This is justa way to recover tort damages from a 3d party. B/c this isnt a will contest,a No contest clause may not apply to this type of suit. Punitive damages

may be recovered against the wrongdoer in a suit in tort but not in a suitseeking to prevent probate of a will on grounds of UI or fraud.

Defined: Where a 3d party has committed misconduct in the testamentaryprocess (i.e. fraud duress undue influence but NOT mental capacity), thosewho would have taken but for the misconduct can also sue the 3d party fortortuous interference with expectancy.

Tort Required: There must be an underlying tort in order to claim this; notsimply an immoral act.


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General Rule: P must proveo (1) The existence of an expectancy

o (2) A reasonable certainty that the expectancy would have been realized

but for the interferenceo (3) Intentional interference with that expectancy and

o (4) Tortuous conduct involved with the interference (This is the difficultpart) AND

o (5) Causation & Damages

Anna had an expectancy and reasonable certainty that it would be realized but forthe interference

Final Point: There are a ton of ways to attack a will that in many respects seems ok

Shilling v. Herrera- Guy was the only heir to his sis estate and caretaker moved her inand took care of her. Bro sent $ and called. He last saw her in March and called butcaretaker ignored him bc she talked sis into changing will to her benefit and sis died in

Aug. Caretaker didnt get back w/ bro until Dec after the will was already probated. TrialCt. said he had no claim bc he didnt exhaust options. Held: Ct follows Whalen ct that F,D, UI or other TI required for this is directed at testator. The beneficiary is not directlydefrauded or unduly influenced, the testator is. Ct says the ct erred in finding he had noclaim and R&R. Rule: In this state, if there is an adequate relief availablein probate ct, then that remedy must be exhausted unless the sfraud isnt discovered until after probate, then can bring a lateraction for damages since relief in probate was impossible.

Probate exception to federal jurisdiction rule: exception prohibits thefederal courts from entertaining a suit that encroaches on the

traditional jurisdiction of the state probate courts. (Anna Nicole smithpunitive damages case)


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Wills: Formalities and Forms

Execution of Wills

Attested Wills [223]

SOF (Land) 1677 Wills Act (1837) UPC 1990 Uniform ProbateCode of 2008

Writing Writing Writing Writing

Signature Subscription Signature Signature

Attestation &subscription by 3witnesses



Attestation & signatureby 2 witnesses ORnotary

SOF SIMILAR TO TODAYS LAWS Purpose of formalities: want to prevent fraud and undue influence. Whether a will has been properly executed depends on 2 things:

o The jurisdictions statutory Wills Act formalities AND

o The judicial philosophy as to what degree of compliance with the Wills act

is acceptable Common law requires strict compliance Groffman (ct held

must testator must acknowledge to both witnesses atthe same time testator must strictly comply withformalities)

Modern trend focuses on substantial compliance or a harmless

error / dispensing power approach. CL also wanted written willsfor property specifically.

3 Requirements for a Valid Attested Will [226] (these must be followedor else the will may be deemed invalid and denied probate sending back tointestate even if there is no fraud etc.; requirements vary by state) UPC 2-502

o Has to be in writing, signed by testator or in the testators name bysome other individual in the testators conscious presence and with thetestators consent AND witnessed by at least 2 individuals w/i areasonable time. And attested.

Writing:o Oral wills are generally not permitted

o Videotaped wills: UPC is unclear if this will satisfy the writingrequirement, MI specifically disallows. [239] Ritual function may not be satisfied question about the

finality and seriousness of a videotape UPC dispensing power (UPC 2-503): if one of the

formalities is missing the ct can overlook this ifthe will truly reflects donative intent. UPC says if


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we can find that testator intended, then its okayand presence requirement is not needed.

o Electronic wills: The UPC would not consider an electronic file to be a

writing but with the 2-503 dispensing power it may be able to bebrought in. If its on a flash drive, may be better.

NV: specifically allows these but has extremely specificrequirements (issue: risk of fraud if all that you have is acomputer file)

Signature of Testator Signed by the testator or another individual in thetestators conscious presence UPC 2-502. Accepted signatureexamples: signed w/ an X, someone signing for them if theyintended to adopt the doc as the will and they did so in hispresence, someone assisting a person in signing if theyintended the doc to be the will or a typed signature in cursivefont and printed and signed by the witnesses.

o A mark: Is an X ok? Yes as long as the testator intends this to be

their signature and IF (1) disabled cannot physically write hersignature or (2) illiterate McCabe Case: X ok as long as witness sees (here, a weak)

testator sign and writes the testators name under the X. Ctwants to be sure intent of the X was for a signature. Ct appliedsubstantial compliance

o Less than full name: What about signing Pat and not Patrick Part of a name is not ok unless there is evidence to show that

the testator intended this to be their full legal signature Ie if the testator normally signs with a full name this may not

be ok bc ct does not know why testator did not use full

traditional signature (ie changed mind or was interrupted)o Signing by another: What if witness helps the testator sign

If the testator asked for the help it is ok but if the witnesssimply helped without request this is not ok

o A digitized signature was Valid : held valid in Tennessee bc it has an unusually broad

definition of a signature in that state (almost anything testatorwants to construe as a signature)

Invalid : Not sufficient for a signature for any jurisdiction thattakes a strict constructionist view of the formalities.

o Rubber stamp

The rubber stamp would probably be ok under TNs broadsignature definition and anywhere that has adopted the UPCsdispensing power

States that take the strict formality approach: difficult to know(if execution ceremony otherwise flawless, then chances maybe better and inability of the testator to write is additionalevidence)

o Writing below (after) the signature


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Some states require subscription: testators signaturemust be at the very end

UPC does not require subscription and neither does MI law(signature can be anywhere) Some Legislatures also have otherrequirements that testator must publish, which declares

in front of witnesses that the instrument is thewill. What if there is a line of text after the testators signature

If already on the document and the testator signs abovethe line

o Some cases deny probate under the subscription

requiremento Other cts may look at what the line actually said

Non-dispositive = ie not givingsomething away may, this line is simplyignored and the rest of the will is put

into probate Dispositive = whole will is invalid if line

below signature is giving somethingaway

o NY statute: may just strike the below line unless

the line is so integral that the testator wouldhave preferred the will to fail than just strikingthe line.

o Strict compliance with formal requirements of

Wills Act: must be in writing, signed by testator,and attested by 2 witnesses plus any addtl

requirements that are mandated by thatjurisdiction. Witnesses: Testator must sign or acknowledge in the presence of 2 witnesses

who then sign and attest within a reasonable time after witnessing UPC 2-502

o Presence

Line of sight test (minority approach): the testator does notactually have to see the witnesses signing but must be able tosee them (ie the pen signing) were the testator to look (thisfailed in Groffman-under this states law, testator can eitheracknowledge his prior signature to both witnesses at the same

time or sign b4 both witnesses.) Exception: The test for a blind person is whether he

could see the signer if he had the power of sight Conscious presence test (modern trend): The witness is

in the presence of the testator if the testator, through sight,hearing or general consciousness of events, comprehends thatthe witness is in the act of signing


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UPC Approach: UPC eliminates the presence requirementfor the witnesses during the actual signing (witnesses do nothave to sign in the testators presence but the testator must stillsign or acknowledge in front of the witnesses) but must stillattest w/I a reasonable time

2-502a2: only talks about the testator signing not thewitnesses signing If you are a 3d party signing for the testator then you

must be in the testators conscious presence Telephonic presence is not enough.

o Acknowledgement Testator must still acknowledge in the

witnesses presence (but witnesses do not have to sign in testatorspresence at least under the UPC) Under most statutes, the testator need not sign in front of the

witnesses as long as the testator acknowledges in front of thewitnesses that the signature already present is the testators.

o

Order of signing Traditional Approach: TestatorWitnesses. The witnesses

have to witness the signature after the testator has signed Modern Trend: MI/UPC 2-502a3: do not require an order as

long as it is all part of one ceremony Ie the testator could simply acknowledge the will and

not actually sign ito Attestation (not required but malpractice avoider makes it difficult to

challenge a witness instead must challenge) Defined: recites that the will was duly executed after the

testator signed but before the witnesses sign and presumes due

execution. Creates a prima facie case that the will was duly executed

(evidence that all the formalities have been complied with andallows admission to probate even if the witnesses have died)

Delayed attestation (modern trend), What if the witnesses donot sign immediately

Statutes vary as to when the signing occurs UPC requires the signing within a reasonable time

(but not in the presence of the testator) Stevens v. Casdorph- W.Va Ct. Guy had

witnesses during his will signing in a bank but he didnt

see them sign and there was no evidence to show thatwitnesses saw him sign. Nieces challenge nephewsprobate. Black rule: traditional rule should be followedwhere wills will not be probated if there is no writingsigned by testators w/ witnesses in his presence. Eventhough he substantially complied w/ Wills formalities,must comply w/ all requirements. Wade exception: Ct


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held that the will wasnt properly executed and reverseCirc. Cts summary judgment for nephew.

o Notarization

If you are executing your last will, it may be difficult

wills_outline

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