WILLS, TRUSTS & ESTATES
Professor Jenkins Fall 2001
Vocabulary:
1.
Testate - to die
with a valid will.
2.
Intestate - to
die w/o a valid will. Distribution governed by statutes of descent and
distribution.
3.
Will -
testamentary instrument describing how testator intends to dispose of his/her
property at their death. It’s revocable during the testator’s lifetime.
a.
Holographic will
- handwritten, no witnesses, signed by testator. May not sign but simply state:
“I, Joe Blow, do hereby . . .” The mention of his name is enough.
b.
Oral will - valid
will for disposition of personal property only and valid only if made during
t’s last illness, 3+ witnesses and probated w/in 6 months. Possibly longer if
statement is committed to writing w/in 6 days.)
c.
Attested will -
i.
Signed by the T
ii.
2 witnesses over
14
iii.
Witnesses must
sign in t’s presence;
(1)
Line of sight
test - t must actually see the attestation
(2)
Conscious
presence (Texas) - t could have readily seen the attestation by some slight
physical exertion. Eg w/in the same room but didn’t see personally. Out of
room, no good, if t couldn’t see from where he was situated.
(3)
No required order
of signatures but must be signed contemporaneously.
4.
Codicil -
amendment to a will. Requires proper execution.
5.
Probate - state
probate courts have jurisdiction over all matters “appertaining to” or
“incident to” an estate. Probate is the proceeding in which an instrument is
judicially determined to be the duly executed last will of the decedent or, if
no will, to determine statutory heirs.
a.
Petition - request
for certain action, the reason and condition/value of the estate
b.
Notice to
interested parties - legatees (personal property), devisees (real property) or
heirs (intestate) and all unpaid creditors.
c.
Hearing
d.
Judicial
confirmation
6.
Non-probate
property - transfer of property at death outside the will
a.
Joint tenancy
b.
Life insurance
c.
Contracts w/
payable on death provisions
d.
Interests in
trusts - trustee holds property for the benefit of named beneficiaries per the
terms of the trust instrument. Decedent may have testamentary power over the
assets in the trust. Will may be admitted to probate but the trust assets
aren’t. They’re distributed by trustee outside of court supervision.
7.
Requirements for
a valid will
a.
Testamentary
intent - showing that t intended the will to take effect on date of his/her
death.
i.
“I leave all to
John. Al” - too indefinite
ii.
“I leave all to
John when I’m not here anymore. Al” - little better but still a matter of
construction.
iii.
Cannot go outside
the 4 corners of the document to determine testamentary intent.
iv.
Must be apparent
intent to take effect @ death, eg use of words “will,” “testator”
b.
Capacity -
testator knows the nature and character of his/her property, knows who it
should go to and nature and effect of the will. Not necessarily competence.
Incompetence not conclusive showing or incapacity - only evidence of it.
c.
Must be 18+,
married, or in armed forces and of sound mind.
d.
No undue
influence
8.
In terrorem
clause (no contest clause) - “If anyone challenges this will, they’ll receive
nothing.” In Texas, if the challenge is reasonable, court will give no effect
to the clause.
a.
Hypo: Uncle died
and left $2 million to his shack-up honey who was 20 years younger. She
encouraged him to change his will. Issues:
i Does nephew have standing to sue? Factors to look at:
1.
Relationship to
testator
2.
Where’s the other
will
3.
Strength of the
relationship between the uncle and nephew
4.
Intestate
succession statute
5.
Are his parents
alive?
i Usufruct - right to use and enjoy
another’s property w/o damaging it or diminishing it.
9.
County court and
probate court are synonymous. County
judge and probate judge are synonymous.
10.
Distributee -
beneficiary under a will or under intestate succession.
11.
Estate - denotes
the real and personal property of a decedent.
12.
Heirs - those
persons, including the surviving spouse, who are entitled under the statutes of
descent and distribution to the estate of a decedent who dies intestate.
13.
Incapacitated
means
a.
A minor
b.
An adult who,
because of a physical or mental condition, is substantially unable to provide
food, clothing, or shelter, or to manage their own financial affairs.
c.
A person who must
have a guardian appointed to receive funds due the person from any governmental
source
14.
Independent
executor means the personal representative of an estate under independent
administration. Includes independent administrator.
15.
Interested
persons means heirs, devisees, spouses, creditors, or any others having a
property right in, or claim against, the estate being administered; and anyone
interested in the welfare of a minor or incapacitated ward.
16.
Legacy includes
any gift or devise by will, whether of personalty or realty. Legatee includes any person entitled to a
legacy under a will.
17.
Minors are
persons under 18 who have never been married or who have not had disabilities
of minority removed for general purposes.
18.
Person - includes
natural persons and corporations.
19.
Personal property
- includes interests in goods, money, choses in action, evidence of debts, and
chattels real.
20.
Personal
representative includes executor, independent executor, administrator,
independent or temporary, and their successors.
21.
Property -
includes both real and personal.
22.
Will - includes a
codicil
23.
Next of kin -
includes adopted children, their children and the adoptive parent of the adopted
child.
24.
Ward - a person
for whom a guardian has been appointed
I. A Foundation for Estate Planning: Society’s Control
of Inheritance
A
Power to transmit
property at death
1.
Jeffersonian view
- dead have no power to direct/control the ownership of property after death.
2.
Ability to pass
on property arose as property owners demanded the right to transmit to others
w/in and w/o their family including friends and servants.
i.
Right to dispose
by testament: written or oral instructions property witnessed and authenticated,
according to the pleasure of the deceased. Became known as a will.
ii.
Wills and
testaments were creations of the law and so were the rights of inheritance and
succession.
iii.
Was the right to
pass on property at death a fundamental, constitutional right?
i.
Originally, the
answer was no. The Supreme Court said
that the power to transmit at death was a legislative creation. Therefore, Congress and state legislatures
had the power to limit, condition or even abolish testamentary power.
ii.
Constitutional
turnaround: Hodel v. Irving
(a)
Congress passed
legislation limiting the ability of the Sioux nation to transmit property at
death. The Supreme Court held that the
power to transmit property at death was a right inherent with ownership.
(b)
Rationale:
Analyzed under takings logic:
(i)
What’s the
economic impact? Does the taking deprive
the party of income?
(ii)
Is there
interference w/investment-backed expectations?
(iii)
Is there average
reciprocity of advantage?
(iv)
What’s the
character of the governmental taking?
Does it destroy one of the essential sticks in the bundle of rights ie
the right to exclude others?
3.
Societal
limitations on the right to pass on and receive.
a.
Shapira: T left estate to A provided he were either married
to a Jewish girl with Jewish parents at the time of T’s death or A married a
Jewish girl w/in 7 years of his death.
i.
Is T’s
restriction on A’s receipt of his inheritance unreasonable, unconstitutional
and/or contrary to public policy?
(a)
Constitutionality:
Is restriction a restraint on marriage?
1.
Loving: right to marry is a fundament right.
2.
Shelley: State can’t enforce a racially restrictive
testamentary gift.
3.
Issue: Is T
asking the state to enforce a restraint on marriage?
4.
Court: No. T is not asking the state to enforce a
prohibition on A’s right to marry. A can
marry anyone he wants. If he wants the
money, he needs to satisfy the condition.
Had T asked the state to enjoin A from marrying someone, different
result.
5.
Evans: T left park land to city Z for whites only. Court held the gift invalid b/c T asked the city
to enforce the restriction. The
enforcement board resigned. Is it now
private action? No. Even the private action of this board
enforcing the restriction amounts to state action. Board is a state agent b/c it performs a
state-like function.
6.
Here, T is simply
at the state’s whim will and fancy in providing a mechanism for dissolution of
the estate. No enforcement.
(b)
Public Policy:
Total restraint is void; partial restraint is reasonable to ask A to marry w/in
a certain religion.
1.
Hackett: Divorce decree required mother to raise a child w/in
Catholic faith. Held invalid. It’s religion.
2.
Court: Partial
restraint on marriage different from absolute requirement to stay w/in faith ie
divorce conditioned on religion.
3.
In re Clayton: Upheld gift conditioned upon not marrying a person
of a certain religious faith. Held to be
a partial restraint on marriage.
4.
Drace: Invalidated gift conditioned on remaining faithful
to a particular religion..
(c)
Reasonableness:
1.
Maddox test: T to A if she marries member of a particular
society; no gift over. Held to be in
terrorem ie threat. T’s condition
was unreasonable b/c the society had very few eligible bachelors.
b.
Restatement
(Second): restraint to induce a person to marry w/in a religious faith is
valid, if and only if, under the circumstances, the restraint does not
unreasonably limit the transferee’s opportunity to marry. Whether transferee is reasonably limited
depends on the type and strength of t’s religious beliefs. Hypo: T to A provided A doesn’t marry outside
race. Held: It is an absolute
restraint of marriage as to one class of people. It unreasonably limits A’s opportunity to
marry.
c.
Will invalid if
it tends to disrupt families:
i.
T to A until 65
unless her husband dies or divorces her before her 65th birthday. Valid if intended to provide support in the
event A needs the money.
ii.
T to A, B & C
provided they never speak w/D. Invalid.
iii.
T to A provided A
drops her hyphenated name. Invalid
disruption of marriage.
iv.
T directs A to
destroy house upon his death. Invalid
economic waste, harms the community, diminishes the tax base, destroys value of
devise.
v.
T to A unless B
divorces C or C predeceases B then A should liquidate assets and provide for
B. Doesn’t encourage divorce but
provides support.
d. Restatement (second) invalidates
trusts contrary to public policy. Eg
restraints on marriage, religion, families, choice of careers. Balance societal interests.
B.
Transfer of
decedent’s estate
1.
Probate and
non-probate property
a.
Probate passes
under the will
b.
Non-probate passes
at death under an instrument other than a will.
1.
Administration of
estates
a.
Appoint a
personal representative (executor for will; administrator for intestate):
i.
Inventory assets
ii.
Manage assets
during administration
iii.
Receive and pay
claims of creditors
iv.
Distribute
remaining assets
b.
Purpose of
probate
i.
Evidence of
transfer of property
ii.
Protects
creditors
iii.
Distributes
property
c.
Primary
jurisdiction - domicile of decedent
d.
Ancillary
jurisdiction - location of real property outside primary jurisdiction
e.
Letters of testamentary/administration
- court authorization in the personal representative to act on behalf of the
estate.
C.
An estate
Planning Problem
1.
Chapter V. Probate and Grant of Administration
ESTATE OF DECEDENTS:
§72.
Proceedings before death.
a.
Administration of
an estate of a living person is void.
Curt may issue letters upon the estate of a person believed to be
dead. Wait 3 years to distribute
property. Restore estate and/or proceeds
if decedent is really found alive later.
b.
Circumstantial
proof. Postings and publications.
§73. Period for
probate.
a.
W/in 4 years of
death unless party shows they weren’t at fault in failing to petition earlier.
Letters testamentary will not be issued after the expiration of 4 years.
b.
BFP after 4 years
have good title.
§76. Persons
who may make application.
a.
An executor named
in the will or any interested person make application to the court of a proper
county:
i.
For an order
admitting the will, whether written or oral, in possession or lost, destroyed
or out of state.
ii.
For the
appointment of an executor.
iii.
For an
appointment of an administrator.
iv.
Interested
persons - include heirs, devisees, spouses, creditors or others w/ property
rights or claims against the estate plus anyone interested in the welfare of a
minor or incapitated ward. Eg T hits
Z. Both die. Persons in Z’s estate may apply to administer
T’s estate to settle a claim.
§77. Order of
persons qualified to serve.
a.
To the person
named as executor
b.
To the surviving
husband or wife
c.
To the principal
devisee or legatee of the testator.
d.
To any devisee or
legatee of the testator
e.
To the next of
kin of the deceased, the nearest in order of descent first, and so on and the
next of kin includes a person and his descendants who legally adopted the
deceased or who have been legally adopted by the deceased.
f.
To a creditor
g.
To any person of
good character residing the county.
h.
To any other
non-disqualified person. When
applications are equally entitled, letters shall be granted to the applicant
who, in the judgment of the court is most likely to administer the estate
advantageously or they may be granted to any two or more of such applicants.
§78. Person
disqualified.
a.
Incapitated
b.
Convicted felon
unless pardoned.
c.
Non-resident
person or corporation (w/o a registered agent in the state)
d.
Corporation not
authorized to act as a fiduciary.
§79. Waiver of
right to serve
a.
Party entitled to
by executor or administrator may renounce his right to letters
testamentary/administration in favor of another qualified person.
§80. Prevention
of administration.
a.
Method of
prevention. A creditor’s application or
another interested party’s application to administrate the estate may be
defeated by:
i.
Paying the
creditor
ii.
Disputing the
debt
iii.
Executing a bond,
twice the amount in dispute, conditioned on establishing the validity of the
debt.
§81. Contents
of application for letters testamentary.
a.
Name and domicile
of each applicant
b.
Name, age,
domicile of decedent and fact, time and place of death
c.
Facts showing
court’s venue
i.
County where
deceased lived
ii.
If didn’t live in
Texas and had no primary residence, the county where his principal property or
county where he died.
iii.
No domicile and
died outside state, county of nearest kin.
iv.
No kin here,
where principal property was
v.
In county of
residence for purposes of receiving funds or money due.
d.
Facts stating
that the decedent owned property, its description and probable value.
e.
Date of will,
name and residence of executor named or if none named, the name and address of
person to whom letters s/b issued and names and addresses of subscribing
witnesses.
f.
Names of
surviving children
g.
Fact that
executor or applicant is not disqualified per §78.
h.
Names of divorced
spouses.
i.
Names of state,
gov’t agency or charities if named.
j.
All these
statements must be revealed if known or knowable w/rsble diligence. Any omission must be explained.
k.
Lost will - must
prove all above plus
i.
Why it can’t be
produced
ii.
Contents (eg
copy)
iii.
Date of will and
name of appointed executor
iv.
Name, age,
marital status and address and relationship of each devisee or legatee.
v.
PRESUMPTION THAT
A LOST WILL HAS BEEN REVOKED BY PHYSICAL DESTRUCTION! Discuss facts that might
indicate otherwise.
l.
Non-cupative
(oral) will - must prove sections a-j plus
i.
Substance of the
words spoken
ii.
Names and
addresses of witnesses
§82. Contents of application for letters of
administration.
Name and domicile of each applicant
a.
Name, age,
domicile of decedent and fact, time and place of death
b.
Facts showing
court’s venue
i.
County where
deceased lived
ii.
If didn’t live in
Texas and had no primary residence, the county where his principal property or
county where he died.
iii.
No domicile and
died outside state, county of nearest kin.
iv.
No kin here,
where principal property was
v.
In county of
residence for purposes of receiving funds or money due.
d.
Facts stating
that the decedent owned property, its description and probable value.
e.
Date of will,
name and residence of executor named or if none named, the name and address of
person to whom letters s/b issued and names and addresses of subscribing
witnesses.
f.
Names of
surviving children
g.
Fact that
executor or applicant is not disqualified per §78.
h.
Names of divorced
spouses.
i.
Alleging
necessity of administration.
§84. Proof of
written will produced in court:
a.
Self-proved. If self-proved, no other formalities required. A self-proved is a will accompanied by an
affidavit attesting that the will is t’s last will and testament. Witnesses attest the signing before T who was
18+, in armed forces or married, and of sound mind. Purpose is to eliminate the need to have W’s
appear in court to attest to T’s signature
b.
Attested written
will. If not self-proved, then:
i.
Sworn by 1+
W’s. Affidavit or testimony.
ii.
Out of county or
unable to attend:
1. Sworn oral or written deposition of
1 or more original W’s
2. If will is not contested in writing,
sworn testimony in court or deposition to signatures or one or more of W’s or
of T’s signature.
3.
If only 1 W is
found, then his sworn testimony is sufficient as to handwriting or signature.
iii.
If W’s are dead,
in armed services or outside the jurisdiction of the court, then 2 other W’s as
to signatures or handwriting of 1+ subscribing Ws or T.
c.
Holographic
will. If not self-proved, a will wholly
in the handwriting of T must be proved by 2 Ws to his handwriting. If Ws outside jurisdiction, sworn oral or
written deposition are fine.
d.
Deposition if no
contest filed. No opposing party or
attorney of record.
§85. Proof of
will not produced in court.
a.
Same as above
plus
i.
Why it can’t be
produced
ii.
Contents (eg
copy)
iii.
Date of will and
name of appointed executor
iv.
Name, age,
marital status and address and relationship of each devisee or legatee.
§86. Proof of
noncupative will
a.
Can’t be proved
w/in 14 days of T’s death, or until those who would have been entitled by
inheritance, had there been no will, have been summoned to contest the same, is
they desire to.
b.
Testimony. Proving testimony only heard w/in 6
months. Written testimony okay if it
were recorded w/in 6 days.
c.
Value of estate
exceeds $30. Need 3 credible witnesses
that T called on a person to take notice or bear testimony that such is his
will.
§88. Proof
required to probate and issuance of letters testamentary/administration.
a.
General proof.
i.
Allege the person
is dead and 4 year SOL hadn’t expired.
ii.
Court has
jurisdiction and venue
iii.
Citation served
and returned
iv.
Executor/administrator
not disqualified.
b.
Additional proof
to probate a will
i.
If not
self-proving that T was 18+, in the armed forces or married at the time he
executed the will
ii.
If self-proved,
that T executed will formally.
iii.
The will wasn’t
revoked by T.
c.
Additional proof
letters of testamentary - the executor is named in the will and there appears
to be proof required to prove the will.
d.
Additional proof
letters of administration - required proof is met plus the necessity for
administration.
§ 93. Period
for contesting probate
a.
Probate must be
contested w/in 2 years after will was admitted to probate.
PROCEDURE PERTAINING TO FOREIGN WILLS
§ 95. Probate
of foreign will accomplished by filing and recording.
a.
Written will of T
not domiciled in Texas at time of his death that would affect property in
Texas, may be admitted to probate if probated elsewhere.
b.
Application and
citation.
i.
If foreign will
has been admitted out of state, the application needs to request an
authentication of the foreign proceedings.
§ 98. Effect of
recording copy of will in deed records.
Valid and effective as a deed of conveyance of all property in this
state.
§ 295. Notice
to holders of secured claims.
c.
Personal
representative must notify known creditors/claimants w/in 2 months letters
issued. If representative receives
actual knowledge of creditors after 2 months but w/in a reasonable time, must
notify.
d.
Notice by
certified mail.
e.
Clerk must
receive copy of each notice.
2.
Professional
responsibility.
A.
Calivas: Plaintiff sued drafting attorney of father’s
will. Left “homestead” to wife when he
meant to say “home.”
a.
Contract theory -
3rd party beneficiaries may enforce the terms of the contract.
b.
Negligence - show
duty by showing foreseeability.
c.
Collateral
estoppel - no preclusion. A probate
action is different from tort.
B.
Texas: Total
privity bar
II. Intestacy:
An Estate Plan by Default
A
The Basic Scheme
(Jenkins: no statute of limitations on establishing an heirship)
1.
Texas Probate
Code: DESCENT AND DISTRIBUTION
§38. Persons
who take upon intestacy
i.
Intestate -
leaving no husband or wife.
(a)
To his children
and their descendants. If none, then
(b)
To his m/f in
equal shares. If only 1 surviving
parent, then
(i)
½ surviving
parent
(ii)
½ bro/sis and
their descendants.
(iii)
If no surviving
bro/sis or their descendants and only 1 parent, then she gets it all.
(iv)
If no parents,
then
(c)
All to bro/sis
and their descendants.
(i)
If surviving
bro/sis is ½ blood, their share is ½
(ii)
A, B, C and D are
full blood and E is ½. A, B, C and D get
2/9ths each. E gets 1/9th share.
(iii)
If no parents,
bro/sis, descendants, then
(d)
Divide into 2
moieties - one goes to paternal grandparents and the other to maternal
grandparents.
(i)
If both alive,
either side, then they share equally.
(ii)
If one alive,
survivor gets ½ w/ remainder going to non-surviving grandparent’s descendants.
(iii)
If one alive and
no surviving descendants, the surviving grandparents gets it all.
(iv)
If no surviving
grandparent, then all to descendants.
ii.
Intestate -
leaving husband or wife. Property other
than community property.
(a)
W/children.
Surviving spouse gets 1/3 life estate in real property and 1/3 personal
property. Surviving descendants get 2/3
property and remainder in life estate.
(b)
W/o
children. Surviving spouse gets all
personal property and ½ real property. The
other ½ goes by way of intestacy ie m/f equally if both alive, or surviving
parent ½ w/ remaining ½ to bro/sis and their descendants. If none, to grandparents, etc.
§41. Matters
affecting and not affecting the right to inherit.
a.
Class closes at
death of decedent - unless child on way
b.
½ blood gets ½
share; full share if no full blood survives.
c.
Don’t have to be
a citizen to be an heir.
d.
May be heir if
convicted unless conviction related to fraud of estate, insurance company or
death of decedent.
§42. Inheritance
rights of children.
a.
Maternal
inheritance. Child is child of his
biological or adopted mother so that his children will inherit from her.
b.
Paternal
inheritance. Child is a child of
biological father if so under 151.002 of the family code, or adjudicated to be
the father, adopted or father executed a statement of paternity. Child claiming to be child of father may
petition probate court for a determination of right of inheritance. Court will use clear and convincing standard
of proof.
§43. Determination
of per capita and per stirpes distribution.
a.
Per capita:
equally to the first full generation alone.
b.
Per stirpes: by
representation if partial generation; children represent their parent.
§45. Community
estate.
a.
H/W - H dies
intestate, w gets if:
i.
No surviving
children
ii.
Only surviving
children are W’s (surviving spouse’s through another marriage).
iii.
Surviving
children are decedent’s, they get ½.
2.
Steps:
A.
Is it community
property?
B.
If partly or
fully separate, determine how it descends.
C.
If descends to
descendants, look to see if there’s a full or partial generation. If full, per capita; if partial, per stirpes.
3.
Hypos:
A.
H/W. H has never divorced previous wife. W is putative spouse.
1.
Presumption -
last marriage is the valid one
2.
Putative spouse -
has a right to property acquired in their marriage as if the party were the
lawful spouse.
B.
A’s will: All to
B if B doesn’t survive me, then to D.
B’s will: All to C. A and B in
traffic accident. Both die. No known order of death.
1.
Law - each
predeceased the other. Regarding A,
then, to D. Regarding B, then, all to C.
2.
Overcome the law
- sufficient proof that one or the other survived by more than 120 hours. Includes time on life support. If can’t be determined, then presumption is
that they failed to survive the other.
3.
Will may provide
for a contingency so that this section is inapplicable.
4.
Janus: Standard of death:
i.
Common law:
irreversible cessation of circulatory and respiratory functions.
ii.
If under life
support, then irreversible cessation of total brain function.
iii.
Evidence of
survivorship:
1.
Law witness
observes signs of life
2.
Expert witness
testifies to the usual and customary standards of practice.
C.
A and B same
sex. Both wills say their property
should go to the other. How would you
ensure that the wills go uncontested? A
might adopt B. Okay to adopt adults.
D.
Can’t limit
inheritance to bodily issue. Law
includes adoptive children as well.
4.
Transfer to
children
A.
Posthumous
1.
Hall: Adopted children could not inherit from their
natural father after their mother remarried and the second father adopted the
children.
2.
Texas: §40. Inheritance by and from adopted children
i.
Child can inherit
from natural and adoptive parents.
ii.
Natural parents
not entitled to inherit from child.
B.
Reproductive
technology
1.
Johnson: H/W signed K with surrogate M using fertilized egg
of W. M reneged. Held: Parenthood
in surrogate mother cases should not be determined by who gave birth or who
contributed genetic material. Should
turn on the intent of the parties pursuant to the contract.
2.
Same sex
partners: A and B same sex. Have child
through artificial insemination. Adoption followed by A.
3.
O’Neal: A was the child of B. A’s father left. B died and Aunt C took care. Eventually, aunt C couldn’t handle so she
gave to D. No one ever adopted A. D died intestate and A asserted rights under
intestate succession. Issue: Was
there an equitable adoption? Elements
of an equitable adoption:
i.
Agreement between
natural parents and adoptive parents
ii.
Performance by
the natural parents of the child in giving up custody
iii.
Performance by
the child by living in the home of the adoptive parents;
iv.
Partial
performance by the foster parents in taking the child into the home and
treating her as their child and
v.
The intestacy of
the foster parents.
Element at issue: legal custody. Held:
The aunt never had legal custody ie no court ever awarded custody to C so C had
no authority over A. Dissent:
Aunt really stood in the shoes of the natural mother. Also, the child has performed and is
entitled.
4.
Hecht: A and B never married. A had kids by a previous marriage. A committed suicide but prior to his death he
had deposited several vials of sperm in a sperm bank so that B could have a child
after he died. Issue: How will
the law treat sperm upon the death of the donor? Held: A had an ongoing say in how the
sperm would be used. Its value is in its
potential to create a life and donor had a continuing ownership interest in it
to extent he could say how it could be used for reproduction. Sperm is neither
a person nor a property interest. There
is no public policy issue debate as to the rights of single women to become
pregnant artificially. Likewise, there’s
no sufficient state interest in prohibiting B from becoming pregnant after the
death of A. Legally, the child born of B
will not be the child of A.
i.
Social security
benefits for child not conceived upon the death of a parent. Will pay benefits
if the state recognizes the rights of after death children.
C.
Transfer of an
expectancy. The persons who would be the
heirs of A, a living person, if A dies within the next hour, are not the heirs
of A but the heirs apparent. They have a
mere expectancy. A transfer of an
expectancy may be enforceable in equity for adequate consideration if fair
under all the circumstances.
1.
Not a valid
interest b/c a will is an ambulatory document.
D.
Managing a
minor’s property
1.
Minor doesn’t
have legal capacity to manage property
2.
Guardian of
person has responsibility for custody and care of the child.
3.
Guardian of the
estate has responsibility for the assets.
4.
Court may grant
both powers in one person. The natural
parent will not necessarily be the guardian of the estate.
5.
A dies leaving B
$100,000 life insurance settlement. The
insurance company won’t give to the parent but will to the guardian of the
estate (might be the parent too). The
guardian must manage the money for the child’s benefit. Need court permission to pay expenses out of
the settlement money. The guardian’s
ordinary expenses don’t count.
Settlement money should go to the child when he reaches 18 or 21 w/
special court action.
6.
Guardianships are
expensive. May ask trust company to take
over the management of the estate.
7.
The insurance
money may have gone straight into a trust.
A trust can last past 18.
8.
Advancements
(intestate succession). Value of inter
vivos transfers deducted from share of estate inheritance.
i.
44. Advancements
a.
If T dies
intestate as to all or a portion of his estate, property he gave during his
lifetime to a person who, on the date of T’s death, is the decedent’s heir, or
property received by a decedent’s heir under a non-testamentary transfer is an
advancement against the heir’s estate only if:
1.
T declared in a
contemporaneous writing or the heir acknowledged in a writing that the gift or
non-testamentary transfer is an advancement; or
2.
T’s
contemporaneous writing otherwise indicates that the gift or non-testamentary
transfer is to be taken into account in computing the division and
distribution.
3.
Advanced property
is valued at the time the heir came into possession or at the time of T’s death
whichever is first.
4.
If the recipient
of the property doesn’t survive T, then the property isn’t taken into account
in the division unless T’s writing says to.
E.
Bars to
succession
1.
In re Mahoney: Homicide.
Issue: Does a widow convicted of manslaughter take by
intestacy? No slayer statute in the
state. Jurisdictional views:
i.
Slayer takes b/c
law should not punish the slayer twice.
ii.
Slayer doesn’t
take.
iii.
Slayer takes as a
constructive trustee. “It’s the formula
through which the conscience of equity finds expression.” Difference between
voluntary and involuntary manslaughter is the element of intent. Slayer s/n profit. The property passes as if the slayer
predeceased the decedent.
2.
Thompson
v. Mayes: A shot and killed B.
A then shot himself. C sued A’s
estate asking the court to impose a constructive trust. A’s estate argued that A had never been charged
with the wrongful death of B. Held:
A constructive trust would be imposed if a beneficiary received property either
by inheritance or by will if the beneficiary willfully and wrongfully caused
the death of another. Proof of willful
and wrongful death is preponderance. No
res judicata where the constructive trust action could have been brought in the
probate proceeding.
3.
Passage of
title and Disclaimer. §§36-37. Means of evidencing disclaimer or
renunciation of property or interest receivable from the decedent.
i.
Person dies and
leaves a will, all appointment powers and legal interests vest
immediately. All property not under the
will vests immediately in heirs. All
interests are subject to payment of debts and delinquent court ordered child
support. When letters testamentary or
administration are issued, the executor/administrator has possessory
rights. A party who wishes to disclaim
his share may do so in writing and acknowledged in front of a notary. The disclaimer relates back to the time of
the decedent’s death. Creditor’s accrue
no rights against a party who property disclaimed. Property includes that which is acquired
outright or that which is burdened by debt.
ii.
Irrevocable
iii.
Partial or whole
disclaimer.
iv.
Can’t be asserted
after beneficiary accepts property.
v.
Filed w/in 9
months of death
vi.
Filed in probate
court
vii.
If administration
is closed or year has passed or nothing’s been filed, then file in county of
decedent’s residence.
viii.
If non-resident,
then file where decedent’s property is located.
ix.
Hypo: A is
entitled to take under a will. A has a
judgment against her. Instead of taking
under the will, she disclaims. The
creditor claimed that she was attempting to avoid the judgment and defraud the
creditors. The court said that since she
disclaimed, she never had the property to fraudulently transfer.
x.
Troy: A was in a nursing home receiving Medicade. A
inherits $100,000. B, A’s sister, visits him and asks him to disclaim his share
so that his new found wealth wouldn’t make him ineligible for Medicade. Held:
The renunciation of a potentially available asset was the functional equivalent
of a transfer of an asset since by refusing to accept it, the disclaimant
effectively funneled it to other familial distributees.
xi.
§37B. Assignment
of Property received from a decedent
a.
Entitled but
doesn’t disclaim may assign.
b.
Assignor may
request it be in writing which must be filed w/in 9 months of decedent’s death.
c.
Can’t defeat a
spendthrift provision imposed in a trust.
xii.
Other bars to
succession:
a.
§41. Matters
affecting and not affecting the right to inherit
i.
Class closes at
death of decedent - unless child on way
ii.
½ blood gets ½ share;
full share if no full blood survives.
iii.
Don’t have to be
a citizen to be an heir.
iv.
May be heir if
convicted unless conviction related to fraud of estate, insurance company or
death of decedent.
b.
§44. Advancements
- There’s no such thing as an advancement against a devise or bequest (ie in a
will). The Advancement Statute only applies to an intestate
distribution evidenced by a writing, written by the donor at the time of the
gift or the donee anytime thereafter.
III. Wills:
Capacity and Contests
Definitions
in this chaper:
1.
Will: A
will includes a codicil; it also includes a testamentary instrument which
merely:
(1) Appoints an executor;
(2)
Directs how
property may not be disposed of;
(3)
Revokes a
prior will.
2.
Incapacitate or
incapacitated person:
(1)
A minor;
(2)
An adult
individual who, because of a physical or mental condition, is substantially
unable to provide food, clothing, or shelter for himself or herself, to care
for the individual’s own physical health, or to manage the individual’s own
financial affairs; or
(3)
A person who
must have a guardian appointed to receive funds due the person from any
governmental source.
3.
Interested
persons: Heirs, devisees, spouses, creditors, or any others having a property
right in, or claim against, the estate being administered; and anyone interest
in the welfare of a minor or incompetent ward.
A
§57. Who may
execute a will
1.
18, or under 18
and is or was married or in armed forces
2.
Of sound mind
i.
Mental capacity:
The testator has the ability to know:
i.
The nature and
extent of testator’s property
ii.
The persons who
are the natural objects of the testator’s bounty
iii.
The disposition
the testator is making, and
iv.
How these
elements relate so as to form an orderly plan for the disposition of the
testator’s property.
v.
The mind and the
memory relevant to the four matters mentioned.
vi.
In re
Strittmeyer: A lived with her parents
for 30 years. They died and she started exhibiting very strange hatred for her
parents the men. A joined an organization advocating women’s rights. She left
her entire estate to them. B challenged the will on basis that A lacked mental
capacity. Held: Invalid due to her insane delusional hatred of men. Jenkins:
When in doubt about the capacity of a client, record her thoughts as to the
disposition of her estate either in writing or via video. Ask: how they arrived
at you office; if they are there of their own free will; who they are and who
you are; why they are there; etc.
vii.
Why require
capacity?
(a)
The will should
reflect the testator’s true desires;
(b)
Mentally
incompetent persons are not considered persons under the law;
(c)
To protect the
decedent’s family;
(d)
Reasoned
dispositions of property lend credibility to the institution of inheritance;
(e)
The sane
dispositions will be carried out in the event the testator becomes insane
later;
(f)
Prevents the
exploitation of the insane by others
v.
To draft a will
for an incompetent person is a breach of professional ethics. The lawyer,
however, may rely on his own judgment regarding the client’s capacity.
vi.
Testator may be
under a guardianship but still execute a will provided he does so under when
lucid. Jenkins recommends informing the court, who has continuing supervision,
that the testator is going to execute a will.
vii.
Insane delusion
(negates all the elements of mental capacity)
(a)
Belief to which
the testator adheres against all evidence and reason to the contrary. Element
at issue: evidence
(i)
Majority view: A
delusion is insane even if there is some factual basis for it if a rational
person in the testator’s situation could not have drawn the conclusion reached
by the testator. Would a rational person draw these conclusions? Remedy:
purge the gift which was the result of the delusion.
(ii)
Texas: Belief of
a state of facts that do not exist and which no rational person would believe.
The will or its terms must also be a product of the insane delusion. If insane
delusion doesn’t work, look to undue influence.
(iii)
Minority view: If
there is some factual basis for the testator’s belief, he is not suffering from
an insane delusion as to that issue. Is there sufficient evidence to support
these conclusions?
1)
In re Honigman: A believed his wife B was having affairs. Everything
she did was twisted into supporting his contention. There was evidence he was
right and evidence he was wrong.
(b)
Difference
between mistake and insane delusion:
(i)
Mistake is
susceptible to correction if told the truth.
1)
“I leave all to A
b/c B is dead.” B is not dead. No court reformation b/c this is a mistake not
the product of an insane delusion. Must stay w/in 4 corners of document.
2)
A tells T that B
is dead. “I leave all to A b/c B is dead.” Fraud in the inducement.
(ii)
Insane delusion
is not susceptible to correction when indicating the falsity of the belief.
1)
“I leave all to A
b/c B is dead.” B calls T and says he’s
alive. T asks B to tell her something only T and B knows is true. B does and T
still won’t believe. Probably insane delusion.
viii.
Undue influence:
the will of the testator is overcome by the will of another.
(a)
Proof may be
wholly inferential and circumstantial
(b)
Lipper v.
Weslow: T had a son by a previous
marriage - S1. She also had two more children by a second marriage - S2 and
S3. S1 was deceased. S1's children
received nothing under T’s will. They challenged on the basis that S2 had
unduly influenced T to exclude them. T explained at length in the will why she
wasn’t leaving anything to them. They were rude, failed to stay in touch, S1's
wife hated S2 and S3. There was circumstantial proof supporting this. T also mentioned that she had given all of
her children homes and cash during her lifetime. Circumstantial proof showed that the will was
executed 22 days prior to T’s death, that it wasn’t read to T nor had she
discussed the will with anyone at all. T was of sound mind.
(i)
ROL: The test for
undue influence is whether such control was exercised over the mind of the
testatrix as to overcome her free agency and free will and to substitute the
will of another so as to cause the T to do what she would not otherwise have
done but for such control. Need (1) the existence and exertion of an influence;
(2) that overpowers the mind at the time of execution; and (3) the will would
not have been executed “but for” the influence.
(ii)
Element at issue:
the will was the product of undue influence
(iii)
The will does
make an unnatural disposition but there is an explanation for it.
(iv)
Look for:
confidential relationship, opportunity to influence, motive, unnatural
disposition, etc. One or in combination.
(v)
2 year statute of
limitations.
(c)
No contest clause
is enforced unless there is probable cause for the contest.
(i)
Calvery: The forfeiture rights under the terms of the will
not be enforced where the contest of the will was made in good faith and upon
probable cause.
(d)
Bequests to
attorneys
(i)
§58b. Bequests to
attorneys and their heirs are void unless related w/in the 2nd degree of
consanguinity. Takes effect on wills executed after September 1, 1997. Wills
executed prior to that would rely on Pro. Res. 1.08 i.e. lawyer must advice T
to seek independent counsel.
(ii)
Even if the will
is written for a relative, the better advice is to another attorney to draw it
up.
(iii)
What if T and T’s
family insists on giving you the gift?
1)
Get another
attorney to advise
2)
Have them write a
letter accompanying the gift.
(iv)
Sexual
relationships between atty. and client. Casts a suspicion of deceit and
cautions to the court to examine the evidence w/unusual care.
(v)
§241.
Compensation of personal representatives. 5% commission of entire estate not
including checking, insurance, cash payouts.
(e)
Attorney conduct:
Seward Johnson’s Estate: Atty. N was the attorney for an
extremely wealthy client, J. She became best friend’s with client’s wife B. J
provided for B on his death with a substantial trust. N was to be the trustee
and receive $500,000 per year as the trustee. Jenkins: N’s relationship
with B created a conflict of interest; namely, her advice to J was at odds with
her advice to B - dual representation. The Code of Professional Responsibility
provides that where an attorney represents 2 clients and those client’s
interests become adverse, the attorney shall withdraw and represent neither. If
she were to represent one or the other she could use information gained in
confidence to the detriment of one and to the benefit of the other.
(f)
In re Will of
Moses: T had three marriages. All
three husbands were dead. She met - but did not marry - an attorney, A. He
wined and dined her. Unbeknownst to A, T left nearly all her estate to him. The
will was prepared by a disinterested attorney.
(i)
ROL: A
disposition to an attorney is presumptively invalid per under influence unless
T had received independent advice and counsel of one entirely devoted to her
interest.
(ii)
Element at issue:
independent advice from one entirely devoted to her.
(iii)
T’s attorney
should have discussed and/or questioned her disposition to A. There was no meaningful independent advice.
T’s attorney did little more than write down what T said.
(iv)
Dissent: T
remarked to a friend that she had to push her attorney to make the will like
she wanted it. That involvement indicates that she got what she wanted of her
own free will.
(f)
Same-sex
distributions. In re Kaufmann’s Will: K wrote a “coming out”
letter which recited all the reasons why he was leaving all his property to his
long-time partner. Held: That K’s partner took advantage of K’s weakness
and his disposition. Suggestions on how to get around the will contest:
(i)
Adult adoption
(ii)
Inter vivos
trust: To K for life, then upon K’s death to K’s partner. The trust is better
than a will b/c:
1)
K made
contributions to it periodically thus assented to it every time;
2)
The trustee could
testify to the voluntariness of the execution and supply independent
validation.
(iii)
Co-habitation
agreement
(iv)
Inter vivos gifts
(still challengeable after T’s death on undue influence grounds);
(v)
Non-probate
transactions like survivorship accounts, insurance, pensions;
(vi)
Videotaped
statement.