Wills Outline—Jenkins

Fall 2003

I. INTRODUCTION.

A. 50 question MC exam, only covers TX law.

B. 2 Methods of transfer @ death.

1. By Will—Testate succession.

a) Person indicates how to distribute their possessions @ death (plan of distribution).

b) You can write your own w/out a law license.

2. By Statute (no will)—Intestate.

a) Person dies w/out a will, or the will is defective.

b) Probate code; declares how property is to be divided based on family relationships, etc.

3. Trust is the other way to transfer, covered later.

C. Requirements for the validity of a will.

1. Testamentary intent: the transfer takes place at death. “I leave all to Jack” has no testamentary intent b/c we don’t know when the transfer takes place. Need to add “upon my death” to make intent. Adding “Will” also gives proper intent.

2. Testamentary capacity: testator must know:

a) Kind & character of his property.

b) Natural objects of his bounty. Those we would naturally look to that would normally take his property.

(1) A girlfriend can be the natural object of his bounty b/c of a relationship.

(2) You don’t have to leave prop to your children.

c) Effect of this act of making a will.

3. Must have ability to form a plan for disposition of her estate.

D. Formal requirements for execution of a will.

1. Execution: actual signing of the will; makes it valid.

2. 2 witnesses if typewritten.

3. T/or’s signature: required in every juris.

4. Competence of witnesses: age, saw the signature applied, etc.

5. Witnesses sign in T’s presence.

6. No publication required.

E. Holographic will—wholly in the handwriting of the t/or; must also be signed by t/or.

1. Problem: what is wholly?

2. Doesn’t require witnesses; must prove handwriting/sig. in ct.

F. Codicil: amendment/addition to existing will.

1. Must be executed in the same way a will in the same format would’ve been executed.

G. Revocation: getting out of an executed will.

1. Requires intent to revoke.

2. Subsequent will revokes the previous.

3. Written revocation of the current will.

H. Probate: validation of the will by a ct.

I. Administration of estate: management of the estate after the will is probated.

1. Administrator (appointed by ct):

a) Gets property together;

b) Pays debts;

c) Distributes what’s left.

2. Executor (named in the will).

3. Independent executorship (TX): acts free of ct. control.

4. Dependent admin: acts under ct supervision; expensive b/c everything requires ct’s permission.

II. POWER TO TRANSMIT PROPERTY AT DEATH.

A. Passing of interests.

1. At death, property passes to the beneficiary, w/ a will or w/out.

2. The heirs exist, but haven’t been determined; the property vests by operation of law—no gaps in seisin.

3. The prop vests subject to the admin of the estate—pay debts, litigate/probate the will, collect prop, etc.

4. Prop is willed by a living person, does a dead person have any rights over it?

5. Dead hand—ability to control prop after death.

B. Right of control of prop.

1. Irving v. Day (p. 3): nothing in the const. prohibits a state to limit, condition or even abolish the power of testamentary disposition over prop w/in its juris.

2. Hodel v. Irving (p. 3): Indian land got fractionated after Congress allowed land allotments. Congress then made a law that allowed the land to escheat back to the tribe if the land earned its owner less than $100/yr; the owner couldn’t devise by will or intestacy. Issue: is this a const. taking, requiring just compensation; is the right to pass it on a prop right? RULE: the right to pass on prop goes into the bundle of sticks; a const. right.

a) Getting rid of any of the rights in the bundle of sticks is an unconst. taking.

b) Factors in determining a regulatory taking:

(1) Economic impact of the reg;

(2) Its interference w/ reas. investment-backed expectations;

(a) Diff. b/t bought land & inherited land = you worked to buy the land; probably no real difference.

(3) The character of the gov’t action.

(a) It should distribute the benefits/burdens broadly.

(b) It’s a taking b/c the statute totally abrogates the right to pass on prop.

3. Is there a const. right to receive prop at death? NO—not a right to receive just b/c you’re a testator’s child.

a) State legislatures are given the power to change the intestacy laws.

C. Taxes & Transmission of Wealth.

1. See syllabus for schedule of amts.

2. Some opinions are that gov’t needs to distribute wealth evenly, & should then tax estates at a higher rate.

D. In Terrorem Clause

1. Example - “A beneficiary shall forfeit his bequest under the will if he contests the validity of the will”

2. Also called the “no contest clause”

3. Rule is valid in Texas but will not apply to an attack on the will that is based on reasonable grounds and instituted in good faith.

4. Shapira v. Union National Bank: Restriction in will requires son to have married a Jewish girl with two Jewish parents; Π argued that the restriction was an unconstitutional restriction on the right to marry.

a) This argument fails because a 14^th amendment violation requires state action; this restriction is action by the individual testator.

b) However, to enforce a condition of a will, parties go to state courtàis this sufficient state action for a 14^th amendment violation? Courts have repeatedly held that court enforcement is not sufficient to constitute state action.

c) The Π’s right is not constitutionally protected – there is no constitutional right to inherit property.

5. Pennsylvania case – testator left money in trust to a university for the education expenses of poor white male orphans; this was state action because it was enforced by a state agency (the university).

a) This does not mean that there cannot be a college fund for a particular group – it must be managed by a private organization rather than a state agency

6. Restatement (p. 32)—if the restriction does not unreasonably restrict the transferee’s opportunity to marry, it may induce a person to marry a member of a particular faith.

a) Ex: “if D marries, X, who is Jewish” – overly restrictive.

b) Condition that D marries a Jewish girl would be invalid if the testator knew that D was engaged to another girl who is Catholic (this is disruptive of the family).

c) This same logic would apply if the son was gay and the testator knew that (this is effectively a total restriction).

7. Residuary – Destruction.

a) What happens if the testator requests that property be destroyed upon their death?

b) Public policy – society’s total wealth will be maximized by permitting private individuals to decide the best use of their property; there is an assumption that each individual will make rational choices to maximize her wealth, and the loss that would follow poor decisions will act as a deterrent.

c) The court may ignore this kind of condition in a will because it violates public policy – waste of property harms society.

d) The court will:

(1) Weigh the social utility of destruction against loss to society of valuable resource.

(2) Weigh motivation of testator.

e) When you are alive, you bear the burden of whether you are going to waste your assets, because you will bear the resultant economic burden; after your death, others must bear the burden associated with waste, and you are not in as good of a position to make such a decision.

f) Notes discussion other kinds of property that have been requested to be destroyed – Justice Black destroyed his notes in his lifetime; what about musicians and authors whose works have literary value? In some of those situations, instructions to destroy have been ignored.

E. Probate Process.

1. Probate means that the court validates a will; court issues and order admitting the will to probate.

2. The process has to do with administering the estate after the court has decided that the will is good.

3. TPC §72

a) Probate or administration of the estate of a living person is void.

b) Probate of one believed to be dead proved by circumstantial evidence is allowed.

(1) Ex: two pilots – one saw the other eject and the parachute did not open; this is sufficient circumstantial evidence to prove death.

c) 4 year statute of limitations (unless proof that party was not in default-muniment of title only).

d) Muniment of title – if the testator put the will in a mason jar and buried it, forgetting to tell someone where it was, after 5 years it is found – if the person can show that they were not in default (not at fault) for failing to present the will, the will can still be probated as a muniment of title (this can be done as many as 30 years later).

e) If everything is distributed and the will is found, a party must swear that there is no will and a diligent search has been made; even so, if it involves real property, the property can be subsequently divided according to the will (this would be unlikely if cash were involved because it is probably gone).

4. TPC § 81(b)—Probate of a Lost Will.

a) Presumption: the testator destroyed it.

b) In order to probate a lost will, you must overcome the presumption and must show:

(1) Reason it cannot be produced;

(2) Contents, as far as known;

(3) Date of execution & executor, as far as known;

(4) Name, age, martial status, rela. to decedent, of each devisee, as far as known.

(5) To have this information you would have to have read the will or have seen a copy of it.

c) interested person – one who has a pecuniary interest (see definition section of the code).

5. Non-probate property – Property passing under an instrument other than a will which became effective before death.

a) Ex:

(1) joint tenancy property – right of receivership; this does not pass under the will, it passes under contract law.

(2) life insurance.

(3) contracts with payable-on-death provisions.

(4) interests in trust – governed by trust law.

6. Probate property—Property that passes under a will or by intestacy.

F. Personal representatives = persons who probate the will; executor [named in will] or administrator [ct appointed].

1. Duties of the rep:

a) inventory & collect the assets of the decedent;

b) manage the assets during administration;

c) to receive & pay claims of creditors & tax collectors;

d) to distribute what’s left.

2. When intestacy occurs, it is not bequeathed, it descends to the recipient.

G. Functions of probate.

1. Provides E of transfer of title to new owners;

a) G/tor = the testator, g/tee = beneficiary under the will.

2. Protects creditors by requiring payment of debts;

a) Property can still be foreclosed upon after the owner dies.

b) Creditors must still be paid.

3. Distributes the decedent’s prop to those intended to get it.

4. Proof for probate of a will TPC § 88:

a) Person is deceased;

b) 4 yrs have not elapsed since date of death;

(1) Exception: person shows good faith

c) Court has jurisdiction [ct has smj over the estate] & venue [person died in that county];

d) Person applying for “letters” is qualified.

(1) Letters testamentary: ct approves that you are named as executor & allows you to do things on behalf of the estate.

(2) Prop collected must be kept separate from the assets of the executor.

5. TPC 83(b)—when another will is brought after 1 is probated.

a) If 1st application has not been heard: ct will hear both & decide which to admit to probate, or void both & consider decedent intestate.

b) If 1st will has been admitted to probate: ct will determine whether the 1st probate should set aside & admit the 2nd will, or void both & consider decedent intestate.

6. TPC 84(b)—proving a holographic will:

a) 2 witnesses required for the will to be valid;

b) Have 2 disinterested witnesses testify that they recognize his handwriting.

H. Probate Venue—TPC 6

1. First sought where the decedent was domiciled at death (primary or domiciliary juris).

2. See Joe Jackson problem, p. 42.

I. Independent executor vs. Dependent administrator.

1. Executor has control of the estate & it’s under his judgment.

2. Dependent administrator needs ct approval for all decisions he makes regarding the estate (can be requested in will).

J. Estate planning problems (p. 50).

1. Remember that life insurance payouts go through the estate for purposes of the estate tax.

2. But, the owner of the policy should not be the deceased—if another owns it, it does not go through the estate for tax purposes.

K. Professional Responsibility.

1. Simpson v. Calivas (p. 59): P sued lawyer for K & neg b/c he said the will drafted did not reflect the intent of the testator. Will gave wife the “homestead;” son claims that it’s only the house, not the 100 acres & family business also on the land. Ct admitted some extrinsic E of intent, would not admit notes taken by the lawyer during consultation that said “house to wife & rem to son, land to son.” So, will not drafted according to intent of daddy. Son had to buy out mom’s LE for $400K.

a) Duty to beneficiaries (TORT): the attorney owes a duty to both the testator & the intended beneficiaries.

b) RULE: foreseeability of harm allows the beneficiary of a will to recover from a lawyer in the K b/t the lawyer & testator. Beneficiary must be a 3rd party beneficiary (almost a no-brainer, except in TX & other states).

c) RULE: a neg action can be maintained if ben shows duty & foreseeability.

d) TX RULE: beneficiaries can’t sue the lawyer for neg will drafting. BUT, the estate can sue the lawyer for poor estate planning.

2. Hotz v. Minyard (p. 66): daddy had 2 wills, 1 daughter didn’t know about. She got screwed by the 2nd will. She went to lawyer’s office to ask questions about the will (he was also her attny); he showed her the 2nd will & did not disclose the 1st. Issue: did the attny owe her a duty to show her the actual will? YES—she was his client also.

a) Beneficiary has no right to see the will w/out the testator’s permission.

b) Even though she has a prop right, it’s not vested—“mere expectancy.”

c) Lawyer’s rep of both daddy & daughter became improper (adverse) when the lawyer showed her the wrong will.

d) Her dgs are probably what she was represented to receive & what she did receive.

3. Barcelo v. Elliot (p. 65): D was preparing estate documents for P, P didn’t want her son to know that she was cutting him out of the trust. P gave specific instructions that the son was not to know. Trust went unfounded & cost them taxes, bens sued lawyer. RULE: no privity gives ben.’s no remedy.

III. INTESTACY—STATUTES OF DESCENT & DISTRIBUTION.

A. Intro.

1. Intestacy is the default position, for those w/out a will.

2. Reasons why people make wills:

a) Birth of a child;

b) Death of someone they know who didn’t have a will;

c) Going on a trip.

B. § 45—Community Prop/Disposition of whole community.

1. Protects the share of the surviving spouse.

2. Putitative spouse: one who reas believes that the person she married was free to marry (actually divorced). If the belief was reas, they can get a cut of the estate.

C. Simultaneous Death.

1. A person succeeds to the prop of an intestate or testate decedent only if the person survives the decedent for an instant of time.

2. Survival is necessary to take.

3. Uniform Simultaneous Death Act: when there is no sufficient E of the order of deaths, the ben is deemed to have predeceased the benefactor.

4. Ex: A’s will leaves everything to B, remainder to C. A & B are both killed in the same car wreck. B’s will gives everything to X. If there is no E of order of death, everything goes to C. If there is E that B survives A, X gets both A’s & B’s prop.

5. TX RULE § 47: in order to “survive” the testator, the beneficiary must survive for 120 hours.

a) This can be altered by will, longer or shorter—47(e).

b) But, if it’s altered, it applies to anything that causes death (not necessarily simultaneous).

c) Does not apply if the result would be escheat.

d) Applies to joint owners, insurance beneficiaries.

6. Janus v. Tarasewicz (p. 78): Janus’ died from taking poisoned Tylenol. Husband’s will allowed that $100K ins. went to wife, with Tarasewicz as contingent ben. So, if wife died 1st, mom gets the $; if she survives him, the $ goes to his estate. Issue: did wife survive husband? YES—husband was undoubtedly brain dead when he arrived at hospital, wife showed signs of life for 2 days.

a) In TX, mom would get the $ b/c wife did not survive husband by 120 hours.

b) There are still questions as to when death actually takes place.

D. Shares of Descendants.

1. Per capita: by the head.

2. Per stirpes: by the root.

3. Disinheritance—“my son John gets nothing.”

a) Not allowed at CL, you could get around it by willing all your prop to others & leaving John out in the cold.

E. Shares of Ancestors & Collaterals.

1. Ancestors & collaterals take (after deducting spouse’s share) when the intestate dies w/out descendants.

2. Collateral kindred: all persons related by blood to intestate who aren’t descendants.

a) First-line collaterals: descendants of the decedent’s parents (other than decedent & his issue). Brothers & sisters of deceased.

b) Second-line collaterals: descendants of the decedent’s grandparents (other than decedent’s parents & their issue). Great aunts & uncles of deceased.

3. Order of taking:

a) When no descendant—to parents (after spouse).

b) When no spouse or parent—to collaterals.

c) When no spouse, descendant or parents—to brothers & sisters & their descendants. Nieces & nephews take by representation of their dead parents.

d) When no 1st-line collaterals, 2 choices (states are split):

(1) Parentelic system: the intestate estate passes to grandparents & their descendants, & if none to them, & if none to great-grandparents & their descendants . . . until you find an heir.

(2) Degree of relationship system: use table of consanguinity on p. 92.

4. TPC § 45—distribution of community prop.

a) Spouse can only give away their ½ of the Community.

5. Real prop distribution:

a) Deceased is: married & no kids → all to surviving spouse.

b) Married w/ kids of surviving spouse → all to surviving spouse.

c) Married w/ kids (kids not kids of surviving spouse) → ½ to surviving spouse (their ½ of community) & ½ to kids.

(1) Ex: H has W1 (former) & W2 (current W), & 2 kids w/ each. He dies intestate, W2 keeps her ½; all kids then split his ½ (each gets 1/8).

6. Other prop is treated the same way.

F. TPC § 38—distribution of separate prop.

1. Prop that is not community.

2. Real prop:

a) Unmarried w/ kids → to kids equally per stirpes.

b) Unmarried w/out kids → ½ to MOM & ½ to DAD (or brothers & sisters in place).

(1) If DAD is dead, his share goes to deceased’s brothers & sisters.

3. Other prop is treated the same way.

4. 38(d): Real estate.

a) Married w/ kids → 1/3 to W in LE, 2/3 to kids.

b) Married w/ no kids → ½ to W

5. 38(d): Other prop.

a) Married w/ kids → same.

b) Married w/ no kids → all to surviving spouse.

G. TPC § 43—Distribution per capita.

1. TX distributes per capita; disregard a level if all on that level are deceased. When you find a level w/ a living heir, split the estate by the head. If 1 person on that level is deceased, his descendants take that person’s share.

2. If they’re all on the same level w/ the level above all dead, divide it evenly among those on that level that are all alive.

3. See examples in syllabus.

H. TPC § 41(b)—Half-bloods.

1. Half blood = collateral kindred; the deceased’s rela to his siblings.

2. The whole blood gets twice the share of the half blood.

3. Ex: A is deceased, has 1 sister of half blood (S) & 2 brothers of whole blood (B,D). Then S gets 1/5, B & D each get 2/5.

I. Table of consanguinity—p. 92.

J. TPC § 67—Pretermitted child— a child born or adopted by testator after the execution of the will.

1. Presumption that this child takes the same share as the other child if not provided for in the will.

a) Ex: if the will provides that all kids get something & pretermitted child is left out of will, he will get the same share as the other kids.

b) E that testator provided for the pretermitted child could be life insurance, trust, etc.

2. Also, if the 4 kids are provided for to get nothing & the pretermitted child is not, pretermitted child would get an intestate share & the other 4 wouldn’t.

K. Transfers to children.

1. Meaning of “children.”

a) Posthumous Children: where it is to a child’s advantage to be treated as in being from the time of conception rather than from live birth, the child will be so treated if born alive.

(1) Presumption that gestation is 280 days (rebuttable).

(2) Burden of proof is on child if gestation is longer.

b) Cts have held that adoption of adults to prevent a will contest is perfectly proper. TX also allows this.

(1) Comes up in same-sex relationships, to keep kids from contesting the will.

(2) Guy1 adopts Guy2 as his son, when parents contest the will they can’t b/c they have no standing to contest.

(3) Family Code prevents natural parents of adopted adults from taking by intestacy.

c) But, NY does not allow different sexes to adopt e/o for policy reasons.

2. Hall v. Vallandingham (p. 98): adopted kids in Maryland can’t inherit from their natural parents directly or through representation. Allowing this puts adopted kids in a better position than natural kids.

a) TX RULE: adopted kids can inherit from both natural & adoptive parents.

b) TPC § 40—adoptive child loses the right to inherit from his natural parents if the adoption decree severs the right to inherit from the natural parents.

3. Hagaman, 886 SW2d 398: will said that “bodily issue” would take; ct allowed that an adopted adult still could take. The intent of the legislature was to put adopted children in the same place as natural children.

4. Who is the parent of a child born by surrogate motherhood? Still evolving; 1 ct allowed that kid has 2 birth mothers (p. 103).

5. O’Neal v. Wilkes (p. 108): kid wanted to be claimed “virtually” adopted by couple that took care of kid (but never formally adopted her) for 20 yrs or so. Ct did not allow it, stating that adoption is a K that requires 6 elements:

(1) The parties are competent to K for the disposition of the child;

(2) An agreement b/t the natural & adoptive parents;

(3) Performance by the natural parents of the child by giving up custody;

(4) Performance by the child by living in the home of the adoptive parents (what?);

(5) Partial perf by the foster parents in taking the child in & treating it like it was their child; &

(6) Intestacy of the foster parent.

Ct found that the woman who gave the kid to the couple did not have the capacity to K for the adoption; she was not the natural parent or guardian.

a) Dissent: there should be an equitable “out” that allows for an adoption in cases like this to be founded on the performance & acts of those involved.

6. Hecht v. Superior Ct (p. 117): P (girlfriend) was impregnated by sperm left by decedent. Decedent’s will specifically gave P his sperm. Decedent’s kids challenge the will b/c they claim that P unduly influenced decedent b/c he committed suicide. Trial ct ordered the sperm destroyed;

a) Whether sperm is prop is important b/c: (1) probate cts only have juris over prop; (2) if it’s prop, it can be gifted.

b) Ct finds that the sperm is a pre-embryo, that the deceased has a prop right in.

c) Ct holds that: (1) PP does not prevent the artificial insemination of unmarried women, & (2) post-mortem artificial insemination is not against PP.

(1) Cal. law allows that if the insemination is done by a Dr., donor is not the father. If she does it herself, he is the father.

(2) TX Fam. Code allows that if the child is made by assisted means of reproduction, the donor is not the father. Married couples can agree to it by permission.

(3) TPC 42 allows that if a child is born by assisted conception & father agrees that he’s the father.

d) Destroying the sperm is an unconst. taking of private prop.

e) Extraction of sperm from dead/comatose men—is the kid his child? Do parents have the right to get the sperm & have grandchildren.

L. Advancements.

1. The ability of a ben to get part of his inheritance b/f the testator dies.

2. If there’s no writing indicating that it’s an advancement, then it isn’t.

3. TPC § 44—requires that a contemporaneous writing declare that it’s an advancement.

M. Expectancies.

1. No living person has heirs—he has heirs apparent.

2. Heirs apparent have mere expectancies, which can’t be transferred.

N. Managing a Minor’s prop.

1. Guardian of the person—responsibility of the minor child’s custody & care. Guardian cannot manage the prop of the child. For that, you need either a:

a) Guardianship

b) Custodianship

c) Trusteeship

2. Parent needs a will to allow for:

a) Designating a guardian;

b) Dealing w/ the mgt of child’s prop.

O. Bars to Succession.

1. Homicide.

a) In re Estate of Mahoney (p. 141): slayer couldn’t get prop of her husband b/c she killed him. At the time of his death, his prop vested her by constructive trust. In equity, the prop would not allow her to profit from the killing.

(1) Constructive trust: legal fiction—trust imposed by law. “Nothing but the formula through which the conscience of equity finds expression.” Prop vests in the slayer & regards the slayer had predeceased the benefactor.

(2) Ct imposes the CT when there is intent of the slayer in the death.

b) Restatement approves the CT, but not when manslaughter is involved; no requisite intent.

2. TX requirements:

a) Intentional & felonious cause of death to the testator.

b) BoP is preponderance of the E (it’s a civil trial).

(1) Criminal acquittal does not mean there was no felonious intent (higher BoP in crim trial).

(2) Probate ct decides if there was a preponderance of E that the benefactor killed the slayer.

c) Applies to multiple party bank accts & ins policies—all survivorship designations.

3. Disclaimer.

a) Troy v. Hart (p. 151): attempt to rescind the disclaimer of Medicaid patient. Ct allowed the disclaimer, but thought he should pay for Medicaid during the period he held the assets b/c his inheritance made him ineligible for Medicaid. Ct holds the $ in a constructive trust for the possible repayment of Medicaid.

(1) Capacity is required to make a PoA.

b) TPC 37A—you can disclaim in whole/in part. You don’t disclaim in favor of anyone, it goes to the next person as designated by the will.

(1) Law looks at it like disclaimer predeceased the testator.

(2) RULE: if a disclaimer is made under a will or intestacy, it won’t be considered a fraudulent transfer.

(a) Dyer: no interest is transferred, b/c the disclaimer never possessed anything.

(3) Disclaimer must be done in writing w/in 9 mo. After, you can’t disclaim.

IV. WILLS: CAPACITY & CONTESTS.

A. TPC 57—Who may execute a will?

1. One who is over 18 (married or a member of the armed forces).

2. Of sound mind.

3. In re Strittmater (p. 159): schizo woman who left her prop to National Women’s Party; will not allowed to probate b/c she lacked mental capacity. The only proof was that she hated men; if she did, she must lack capacity.

a) Even if you show that she was insane b/c of her hatred for men, did this insanity cause the bequest?

b) Case seems a little screwy.

B. Reasons for requirement of Capacity.

1. A will should be given effect only if it represents the testator’s true desire.

2. An incapacitated person is not a “person” under the law.

3. Capacity protects the decedent’s family.

4. Protects society at large from irrational acts.

C. Test for Capacity.

1. Testator must have the ability to know:

a) Nature & extent of his/her prop;

b) Persons who are “natural objects of her bounty;”

(1) Persons likely to take under the will.

(2) Does not have to be a blood relative of any kind.

c) The disposition the testator is making;

d) How these elements relate to form an orderly plan for distribution.

e) These only set the stage.

2. Testator must have mind & memory relevant to all the things AND must understand the significance of the acts.

3. Little isolated facts & idiosyncrasies do not destroy capacity unless they directly bear upon & have influenced the testamentary act. Wright, p. 163.

4. Just b/c someone is declared legally incapacitated & put under a guardianship, they still may have enough capacity to execute a will.

a) But, be careful—get a ct order.

b) Power to make a will takes lower level of capacity than that required to make a K, etc.

c) But, it takes more capacity to make a will than to get married (go figure!!).

5. It’s a breach of pro res to make a will for an incapacitated person.

D. Insane Delusion.

1. Delusion—false conception of reality.

a) Legal, not psychiatric concept.

2. Insane Delusion—false conception of reality to which testator adheres against all reason & E to the contrary.

a) Testator may have the mental capacity to make a will, but suffer from an insane delusion that influences 1 part of the will.

b) If the delusion affects testamentary capacity, it is insane.

(1) If so, only that part of the will fails.

(2) When a part fails, the gift falls into the residuary part of the estate.

c) MAJ 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.

3. In re Honigman (p. 166): guy left nothing in his will to his wife but her statutory share. He thought she was cheating on him & there was E showing the possibility. We look for a factual basis to show that he was not suffering from an insane delusion & allow the will to stand.

a) MIN view: if a person persistently believes supposed facts, which have no real existence except in his perverted imagination & against all E & probability, & conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; & a delusion in that sense is insanity.

b) MAJ view adds the reas person test to this.

4. TEST:

a) There an insane delusion; AND

b) The will is a product of the insane delusion.

c) Contests using this usu. involve family members.

5. Insane Delusion vs. Mistake.

a) An insane delusion is a belief not susceptible to correction by presenting the testator w/ E indicating the falsity of the belief.

(1) Cts usu. invalidate wills resulting from insane delusion.

b) A mistake is susceptible to correction if the testator is told the truth.

(1) Cts do not reform/invalidate wills b/c of mistake.

(2) Nothing you do can get it changed.

E. Undue Influence.

1. UI must result in coercion—to execute a will in someone’s favor/to someone’s detriment.

2. Elements: sets the stage for the TEST.

a) Susceptibility of the testator;

(1) Has to do w/ age & physical ability.

(2) Age alone not a factor, it’s how you handle the age.

b) Opportunity;

c) Disposition for personal benefit;

d) Unnatural provision in the will;

(1) Look if heirs were disregarded according to intestacy statutes.

(2) Can be overcome w/ E of reasons why the will was structured this way.

3. TEST: whether such control was exercised over the mind of the testator as to overcome her free agency & free will & to substitute the will of another so as to cause the testator to do what she would not otherwise have done but for such control.

4. Lipper v. Westlow (p. 177): P’s are grandchildren of testatrix’s 1st dead husband, challenge being left out of will. Issue is whether testator was unduly influenced in making the will.

a) Problem = will written by son, who was a lawyer; conflict of interest—avoid the appearance of impropriety. Confidential relationship.

b) Problem = should have testator write down their own reasons for leaving out the kids.

c) Avoid factual recitations in the will; they may be countered by E at a contest hearing. Put it in writing other than the will; the will is a public document. There is such a thing as testamentary libel.

5. TPC 58b

a) Devise to an attny that prepares the will is void, unless the testator is a family member (spouse, ascendant/descendant, related w/in 3rd degree of consanguinity).

6. In re Will of Moses (p. 188): Mrs. Moses shacked up w/ a lawyer 15 yrs younger. Her will was written by another attny; the young lawyer got all of her crap. He probably was the natural object of her bounty b/c of their rela. Ct would not allow probate, based mostly on the inappropriate rela b/t the 2. Age, illness, addiction probably increases her susceptibility; but going to another attny for the will, she manages a business, she kept re-working the will helps refute it. But, you still have to find a causal rela b/t the influence & the will.

a) Attny should’ve asked who Holland was & his rela to Moses. He should’ve anticipated/prepared for a contest.

b) Shell could’ve: advised her to get a letter, adult adoption, give something to her natural heirs, marriage, inter vivos trust (to herself for life, remainder to him).

(1) Trust allows the benefit of the trustee, you can validate it by adding to it during her life.

c) Why wouldn’t Shell want to do any of this? Maybe he was embarrassed to get into her private life.

7. Gaines v. Krawley (supp., TX): UI usu. proven by circumstantial E; it’s often the main E available.

8. In re Kaufmann’s Will (p. 193): guy left all of his stuff to his male love-monkey. He even left a letter stating what he wanted to do. Still did not work; probate was not allowed. Dissent said that the verdict rests upon suspicion & moral judgment, not on facts & law.

a) What might he have done? Set up a trust, inter vivos gifts, draft a letter to the family, videotape the conferences/exectutions.

9. Seward Johnson’s estate (p. 197): Johnson was 1 of the Johnson & Johnson boys. He gradually gave his chick-friend Basia more & more stuff, leaving out his children. Zagat, the attny who drafted the will, was Basia’s friend. Trusts had been set up for his kids & some stuff to Basia during his life.

a) Is it a conflict to represent both H & W in a will situation? Not usu., but it becomes a conflict when their interests become adverse.

b) Problem was that Zagat got herself too personally tangled up in the will.

c) If the drafting attny is a witness to be called at trial, that attny can’t represent the estate.

F. Fraud: intent to deceive the testator & influence the testamentary gift.

1. Fraud in the inducement: a person misrepresents facts, thereby causing the testator to execute a will, to include particular provisions in the wrongdoer’s favor.

a) Ex: testator asks who his nephews are, nephew answers “2” when there are actually 3. The testator then makes the will out for 2 & the 3rd nephew challenges it.

b) Inducer has a const. trust imposed on him in favor of the other 2.

c) Fraudulently procured inheritance/bequest is invalid only if the testator would not have left the inheritance or made the bequest had the testator known the true facts.

2. Fraud in the execution: when a person misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.

a) Ex: testator can’t see/read & is deceived in making out the will.

3. Latham v. Father Divine (p. 215): widow executed will, leaving all of her stuff to D. D prevented her from executing a new will by killing her. Ct held that it is also fraud to prevent someone from executing a new will so that they can take under the current will. The wrongdoer will then have a constructive trust imposed on him, in favor of the intended beneficiaries. You must be able to show who the intended beneficiaries are (easy in this case b/c they had the new will). You can also go into the intestacy statutes.

a) A const. trust may also be imposed where no fraud is involved but the ct thinks that unjust enrichment would result if the person retained the prop.

b) It is a tort to interfere w/ an expectancy.

4. Action for tortious interference is not a will contest.

a) Challenger is trying to recover dgs.

5. TX—See King v. Acker (supp.); requires that the wrongdoer act willfully & maliciously. Cts also allow exemplary dgs in TX.

6. TX—Neill v. Yett (supp.); tort has a 2-yr SoL.

G. TPC 10—Persons entitled to Contest.

1. Any person interested in the estate may, at any time b/f any issue in any proceeding is decided upon by the ct, file opposition to a will.

2. TPC 3(r)—person interested means heirs, devisees, spouses, creditors, or any others having a prop right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor/incompetent ward.

V. FORMALITIES & FORMS.

A. Execution.

1. Requirements are strict b/c it’s easy to comply w/ the statute. There is no partial compliance allowance.

2. A will that is improperly executed is invalid.

a) You can’t be sued for improper execution b/c of the privity barrier.

b) The last resort is to execute by telephone.

3. Reasons for formal execution:

a) Ceremonial function—ct needs to be convinced that the statements of the t/or were deliberately intended to effectuate a transfer.

b) Evidentiary function—gives reliable E to the ct.

c) Protective function—safeguards the testator, at the time of the execution of the will against claims of undue influence or other forms of imposition.

d) Self-proving Affidavit: signed by testator, 2 witnesses & notary. It’s prima facie E that the testator had capacity at the time the will was executed.

(1) So, BoP lies w/ the challenger unless the self-proving affidavit is not executed.

4. TPC 64–65. Oral wills (nuncupative) are recognized in TX.

a) Testator has to ask for witnesses.

b) Must be made at the time of the last sickness of testator.

5. TPC 81(c). Requirements for probating oral will = all the requirements of a written will, PLUS:

a) The substance of the testamentary words spoken.

b) The names & residences of the witnesses thereto.

6. In re Groffman (p. 227): will executed incorrectly; witnesses did not witness the testator’s signing the will & did not witness e/o signing it. Wife challenges b/c she got life estates only; she claims ineffective execution. Statute required that witnesses witness the signing of the testator at the same time he signs it. But, the witnesses can sign 1 at a time, as long as the testator sees it. Testator had to acknowledge to both witnesses at the same time that he signed the will.

7. TPC 59. For a typewritten will.

a) Would Groffman’s execution be valid in TX? YES.

b) Testator does not have to acknowledge that it’s a will.

c) The will does not have to be signed at the end, sign it anywhere.

d) Witnesses (2, credible) do not have to be in e/o’s presence when they sign; they have to be in the testator’s presence.

e) Testator does not have to be in the presence of the witnesses when he signs.

f) Witnesses: must be over 14 & disinterested.

g) T/or can get someone to sign his name for him, “by another person for him by his direction & in his presence.” T/or must ask the person to sign.

h) Cannot use a rubber stamp.

8. “Presence” TESTS.

a) Line of sight test: t/or does not have to actually see the witness, sign but must be able to see them should the testator look.

b) Conscious presence test (TX): the witness is in the presence of the t/or if the t/or, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing.

(1) Slight physical exertion to see the witness is sufficient.

(2) Being in another room is too far away. See Nicholas, supp.

c) See notes on p. 233–35.

9. Additions after the signature.

a) TX—does not require the t/or to sign at the end, it can be signed anywhere.

b) All wills must be in writing.

10. Video/spoken wills.

a) Not valid in TX b/c not a writing.

b) Animated words in the video, a signature on the label do not matter. It must be a writing & witnessed.

11. Order of signing.

a) TX—the exact order is not critical, so long as the signing is part of “1 contemporaneous transaction.”

b) TX—t/or can sign by making an “X.”

B. TPC 62. Execution by Interested Witness.

1. Interested witness: a witness who is also a beneficiary under the will they are witnessing.

2. TX “purging” statute: A bequest to subscribing witness shall not be void if the testimony proving the will is corroborated by ONE OR MORE DISINTERESTED & CREDIBLE PERSONS (not witnesses, could be notary, attny).

3. TPC 61—if no corroboration, & intestacy occurs, interested subscribing witness takes—LESSER OF WILL OR INTESTATE SHARE.

a) You can’t come out better if your gift is purged by 62.

4. Does not invalidate the will, but the witness’s gift is purged.

5. Estate of Parsons (p. 236): Deceased had will execution witnessed by 3 persons: Nielson, Gower, & Warda. Nielson & Gower were beneficiaries under the will, Warda was not. Nielson got $100 under the will, disclaimed it 10 months later. Deceased’s heirs challenge the will, claiming it is invalid b/c not witnessed by 2 disinterested witnesses (there was only 1). RULE: subsequent disclaimer of an interested witness’ gift under a will does not then make them disinterested.

a) A gift not taken by a legatee is LAPSE & goes to the residuary & down by intestacy.

b) TPC 37A—for purging statute, disclaimer relates back to the date of death.

C. Executing a will.

1. See p. 242 & will in syllabus.

2. You become the custodian of the will & need to keep it for the client.

a) Do not make duplicate originals.

b) Safeguarding a will: you need to let the client know where the original is—w/ the client or w/ you.

c) Typically, if a will is validly executed in another juris., it’s valid in TX.

3. In re Pavlinko’s Estate (p. 247): H & W each signed the will of the other. W died, then H died & residuary legatee tried to probate H’s will. Ct wouldn’t allow it & made the will a nullity, too many changes were required to make her will into his. Dissent was probably right, he claimed the will should’ve been probated b/c the brother who brought the will for probate was the residuary legatee in both wills & both H & W were dead.

a) In re Snide (p. 251): had the same facts as Pavlinko, but reversed the names & probated the will.

4. In re Will of Ranney (p. 252): see brief. T/or & witnesses signed the self-proving affidavit, but not the attestation clause. Ct held the will valid, allowed that they had substantially complied w/ the statute.

a) Substantial compliance: a functional rule that cures the inequity caused by the harsh & relentless formalism of the law of wills.

b) No substantial compliance in TX—the rules are simple enough.

5. TPC 59(b)—signature on the self-proving affidavit is considered a signature on the will. But, using this provision makes the self-proving affidavit is void.

a) So, you have to prove capacity in court using the witnesses.

6. Boren v. Boren—cts previously held that the will & affidavit were 2 documents & the sig on one could not be used for the other.

D. Holographic Wills—written by the t/or’s hand & signed by the t/or; no attesting witnesses are required.

1. Ct is more likely to honor the t/or’s intent in a holographic will than in a typewritten will. You still must have the required elements & the rules will still apply.

2. TPC 60—must be wholly in the handwriting of the t/or & signed by him [not at the foot—anywhere], no witnesses are required. May be proved during t/or’s life by attaching an affidavit by t/or saying that:

a) It’s his last will;

b) He was at least 18 when he executed it;

c) He was of sound mind;

d) He has not revoked it.

e) No date is required, but is recommended b/c it helps determine which is the later will.

3. In re Estate of Johnson (p. 264): will denied probate as holographic b/c it was a form will filled out in t/or’s handwriting. RULE: form will filled out by t/or qualifies as a holographic will only if the printed parts can be eliminated & the handwritten part would still E testamentary intent of t/or. The “material provisions” must be in the t/or’s handwriting. Here, the material provisions were in the printed part. 2 witnesses would’ve made this will alright. This is the typical way cts deal w/ a stationary-store will.

4. See example of “arrow” will & notes on p. 270.

5. A letter of instructions to an attny on how t/or wants the will made can’t be probated—cts find it a list of instructions.

a) But, putting a phrase like “keep this in case a will is not made” or something like this may allow it to be probated.

6. Statutory form wills: form that essentially tracks the statute, so it’s easier/more likely to be probated. Must be signed & attested to as any other attny-made will.

7. Kimmel’s Estate (p. 271): father sent letter to his sons on the day he died stating what he wanted done w/ his prop. Sons admitted letter to probate & intestate heirs contested. Issues: can this be probated? Is “Father” a proper signature? RULE: an informal document evidencing intent of a conditional gift & an intent to execute may serve as a testamentary document. “Father” was allowed b/c it was intended as a complete signature to the particular character of document.

a) Did t/or intend for that to be his signature on this document at this time?

b) Remember, no rubber stamps.

E. Revocation of wills.

1. Important b/c it effects the probatability of the will. Let your client know b/c:

a) They may want to change it later;

b) They may do something to screw up a valid will.

c) Remember the presumption of revocation when trying to probate a lost will.

2. Ways to revoke. Begins with the intent & capacity to revoke.

a) By subsequent writing with testamentary formalities; OR

b) By physical act such as destroying, obliterating, or burning the will.

c) If a duly executed will is not revoked in a manner permitted by statute, the will is admitted to probate.

d) Capacity: same as the capacity to create—prop you have, natural objects of your bounty, result of your action.

3. TPC 63—no will in writing, & no clause thereof/devise therein, shall be revoked, except:

a) By a subsequent:

(1) Will [revokes the whole thing],

(2) Codicil [revokes a provision], or

(3) declaration in writing, executed w/ like formalities [not necessarily the exact same way], or

(a) Hypo: will #3 that revokes will #2 is not valid. Then, will #2 is the will that can be probated.

(b) Hypo: you can revoke a typed will w/ a handwritten declaration in writing executed w/ like formalities. Whatever method you use is valid for that instrument of revocation.

b) By the t/or:

(1) destroying or canceling the will, or

(2) causing it to be done in his presence.

(a) T/or must have intent to destroy/cancel.

(b) Be aware of the “in his presence” part.

(c) Same test as for presence of witnesses.

4. What is a valid revocation?

a) A subsequent will revokes a previous will.

b) If there is a valid will and the client subsequently writes on paper, “I leave my car to X,” the will is not revoked, the subsequent writing is a codicil.

5. Problem p. 277 – REVIEW THESE PROBLEMS.

a) (a) destruction of a codicil does not destroy a will; however, destruction of a will destroys codicils.

b) (b) no – see above rule.

6. Harrison v. Bird: testator executed a will, the original was kept by attorney, and a duplicate original was given to the beneficiary. Testator called her attorney and told him she wanted to revoke her will, and the attorney tore it up in front of his legal assistant (testator was not present; on the phone); he sent the pieces of the will to the testator along with a letter saying that the will had been revoked. When the testator died, the letter was found but the pieces of the will were not; the other original was submitted to probate.

a) Duplicate original = there are two original wills, both are properly executed; either can be admitted to probate.

b) ISSUE: is a duplicate will valid when the other original was revoked?

c) RULE: revocation by physical act requires that the will be torn up by the testator or at the testator’s direction in her presence. Telephonic presence is not sufficient for execution; it is likewise insufficient for revocation

d) RULE: when you cannot find the will, there is a presumption of revocation that arises.

e) H: the beneficiary did not present sufficient evidence to rebut the presumption of revocation, and therefore the testator was deemed to have died intestate.

f) If the pieces of the will had been found, the pieces would have been reconstructed and submitted to probate (would the attorney be liable for malpractice? Yes; everywhere but Texas because of the privity bar).

g) If she (the testator) gets the pieces in the mail and then tears them up into 8 pieces (or throws them away), that would be valid revocationàthe presumption here is that she disposed of them, so she revoked the will herself after he mailed it to her.

7. TX: In Texas, there is no partial revocation by physical act (you cannot physically cut someone’s name out of the will and keep the rest as valid).

8. Problem 2 (279) – if the will cannot be found it can also be probated in Texas as a lost will under §81b; in order to submit to probate as a lost will you must overcome the presumption of revocation; the best evidence for this is a copy of the will or a duplicate original (you must establish that the will was not revoked – he was just talking about revocation, but the testator told us it was in a safety deposit box; if someone else says that they saw the testator destroy it, the presumption remains).

9. Thompson v. Royall: testator executed a will; later requested that the attorney come to her house to destroy the will. The attorney suggested that instead of destroying it, she write “this will is revoked” on each page, and keep it for when she wants to prepare a new will. The attorney wrote the note on the will; the testator signed it (but there was no proof as to her handwriting). The testator died before executing another will. RULE: There was intent to revoke, but because the written revocation was not in the testator’s handwriting it was not valid (holographic revocation).

a) This was not a valid holographic revocation because the testator did not write it; if the judge had written that it was null and void, signed by the testator, and there were two witnesses, it would have been valid.

10. TX - Marks or lines across the written parts of the instrument with intent to revoke is sufficient; the testator’s signature would not be required; the defacement does not require the same formalities as declaration in writing.

11. Problems, 284.

a) Problem 3– what if there was a self-proving affidavit revoking the will; one case found this was sufficient because the affidavit can be considered a part of the will; Texas would likely follow this decision, based on the decision that the signature on the s-p affidavit can be considered signature on the will.

b) Problem 4 – testator writes “canceled; M. Kroll”; is this a valid revocation by physical act? No because she did not deface the actual will; would this be a signature – the test is whether the testator intended for this to be their signature.

c) Problem 5 – testator writes void across a copy – a copy would not be a valid will, and you cannot revoke something that was never valid.

12. Ashley v. Usher (supp.)

13. Smith v. Smith (supp.)

14. Lowery v. Saunders (supp.)

15. Harris v. Strawbridge (supp.)

16. Leatherwood v. Stephens (supp.)

17. Stanley v. Henderson (supp.)

18. Lewis v. White (supp.)

19. Matter of Estate of Glover (supp.)

20. Harrison v. Bird (p. 277):

21. Thompson v. Royall (p. 280):

22. Carter v. 1st United Methodist (p. 286):

23. Estate of Alburn (p. 292):

24. TPC 62—in will covered by section 61, the gift to subscribing witness shall not be void if his testimony proving the will is corroborated by 1 or more disinterested & credible persons who testify that the testimony of the subscribing witness is true & correct, & such subscribing witness shall not be regarded as an incompetent/non-credible witness under section 59.

F. Doctrine of Dependent Relative Revocation & Revival.

1. If the t/or purports to revoke his will upon a mistaken assumption of law/fact, the revocation is ineffective if the t/or would not have revoked his will had he known the truth. Ct can disregard a revocation based on a mistake of law or fact.

2. TX RULE: there is no revival of a revoked will—EVER. Once the will is revoked, nothing can be done. Also, no partial revocation at all.

a) Exception: DRR.

b) Ex: if you revoke will #1 by making will #2, you can never bring will #1 back. DRR will allow you to bring back will #2 if you revoke it by destruction, but you can never get will #1 back.

c) The idea is that the most recent will is the closest thing to the t/or’s intent; you can revive the most recent will b/c of tainted intent: t/or did not know the consequences of his actions by revoking will #2 (he thought he could revive to will #1).

d) In TX: if t/or destroys will #2 thinking he’s reviving will #1, ct will revive will #2 under DRR.

3. Similar provisions—Ex:

a) Will #1: $10K to A

Gold watch to B

House to C

$5K to D

$3K to E

Residuary to X

b) Will #2: $15K to A

Gold watch to B

House to C

Residuary to X

*These are probably similar enough to allow will #2 to be revived

4. Carter v. United Methodist (p. 286): t/or made changes to will in handwritten document which was kept w/ the will.

5. Estate of Alburn (p. 292): 2 wills executed by t/or; she revokes #1 by destroying it. Ct would not revive #1 (like TX), they allowed #2 to be revived b/c they were similar enough. Same DRR definition as 1. above.

a) Ex: if #2 was never validly executed, will #1 is not validly revoked—no DRR problem.

6. Revocation by operation of law (i.e., divorce).

a) TX RULE: a gift to a spouse who is now an ex-spouse is void. Does not apply if t/or remarries divorced spouse.

b) What if gift is to “wife,” not named. If t/or remarries a different wife, the provision still applies to the new wife. This also applies to ins. proceeds & retirement benefits.

7. TPC 69(a)—NO partial revocation by physical act in TX.

a) If will is not found, presumption of revocation by physical act.

8. Problems, p. 290.

1.(a) This is not a holographic codicil, b/c no signature. Argue that it is b/c there’re initials & the amt.; you’ll probably lose b/c material provisions not in the handwriting of the t/or. Handwriting must show testamentary intent on its own.

(b) Blake gets $1000. You can’t do anything about what he wrote on the will.

G. Conditional Wills.

1. Wills that contain clauses that take effect when a certain condition occurs.

2. Most are given effect b/c of the presumption against intestacy.

3. Putting “if only” into the clause makes it more certain.

4. RULE: cts presume the language of the condition does not mean the will is to be probated only if the stated event happens but is, instead, merely a statement of the inducement for the execution of the will, which can be probated upon death from any cause.

H. Components of a Will.

1. Possibility that documents & acts not executed w/ testamentary formalities have an effect in determining who takes what prop.

2. 2 Doctrines permitting extrinsic E to resolve the identity of persons/prop.

a) Incorporation by reference.

b) Acts of independent significance.

3. Integration of wills.

a) Which papers present @ time of execution comprise t/or’s duly executed will?

b) More concrete if all pages are fastened together b/f t/or signs & t/or signs/initials each numbered page.

c) Look for:

(1) Internal continuity;

(2) Staples.

4. Republication by Codicil: an implied restatement/rewriting of the language of a valid will as of the date of the codicil.

a) A will is reexecuted (republished) as of the date of the codicil. Assumption that a codicil re-affirms the will to which it is attached.

b) Ex: will written in 1981. Codicil dated 1992. Will is republished in ’92 when the codicil is executed.

c) Ex: t/or has a will & revokes it by executing a 2nd will. He then executes a codicil to the 1st will. Since this is a republication of the 1st will, the 2nd is revoked by implication (“squeezed out”).

d) Not applied automatically, only when updating the will carries out t/or’s intent.

e) Diff. b/t republication & incorporation by reference = republication only applies to a prior validly executed will; inc. by ref. applies to inc. into wills instruments never validly executed.

5. Incorporation by Reference (ibr).

a) Applies only when instruments that NEVER HAD testamentary life are inc. into a will & given TESTAMENTARY EFFECT.

(1) Will must refer to writing IN EXISTENCE [at the time the will is executed] w/ reas certainty.

(2) Will description corresponds to description & was the one intended by T.

b) Differs from republication by codicil in that republication only applies to a valid will. Inc. refers to documents w/ no testamentary value apart from their inc.

c) Clark v. Greenhalge (p. 303): D was executor & principal ben. of Nesmith’s will; Nesmith reserved the right to make other distributions of personal prop in a memo. Nesmith also made designations in a notebook in addition to the memo. The notebook left a painting to P; D refused to give it up. It was cool that the codicil was partially written by t/or’s nurse—intent is what matters. Problem was that the memo referred to in her will was not in existence at the time of execution of the will. But, they said codicil republished will & overcame defects in the inc. by ref. RULE: a properly executed will may inc. by ref. any document/paper not so executed & witnessed, if it was in existence at the time of the execution of the will & is identified by clear & satisfactory proof as the paper referred to therein.

d) Johnson v. Johnson (p. 311): t/or typed his will but did not sign it or have it witnessed. He later hand wrote a codicil at the bottom & died. The entire document (typed & handwritten) was offered for probate. RULE: a valid, holographic codicil may inc. & republish a prior will which would’ve been ineffective b/c of its failure to comply w/ formal requisites.

e) For holographic wills it is necessary to eliminate the typed part on the face of a holographic will as either (1) immaterial or (2) no intent to inc. the typed matter.

6. Acts of independent significance.

a) Determines how much extrinsic E will be allowed to show testamentary intent.

b) If the ben. or prop designations are identified by acts/events that have a lifetime motive & significance apart from their effect on the will, the gift will be upheld under the doctrine of acts of ind. sig.

c) Ex: t/or leaves “the car I own at my death.” You go outside the will to determine which car he owns at his death. See cases, p. 318.

7. Exception to the “in existence” rule—Memo of Personal Effects.

a) TX allows this rule.

b) Separate writing t/or can create after the will is executed, telling the disbursement of personal prop.

c) Contains t/or’s personal effects & allows t/or to change things if he wants. Also usu. allows the executor to make decisions about some of the crap.

d) Cannot contain real prop OR cash; has to be mentioned in the will.

8. See Simon v. Grayson, p. 309.

9. Johnson v. Johnson (p. 311): t/or had a typed will that was not signed or attested, he later wrote another paragraph at the end of the typing. The holographic part he signed & dated. Issue: were they 1 will, or a will & a codicil? Ct found it a valid holographic codicil. Ct is wrong, b/c the 1st will is not valid—RULE: you can’t have a codicil to a will that’s not valid.

a) Possible argument is that the handwritten part is a will by itself, & the language “this will” incorporates the typewritten part by reference.

10. To probate a holographic will, you must eliminate typed matter on the face of the holographic will on the ground either that it is immaterial or that there is no intent to inc. the typed matter.

11. Contents of drawers, etc.

a) TPC 58(e)(1)—devise of “contents” means tangible, personal prop. Does not include intangibles, choses in action [bank book], “titled” personal prop represented by a certificate or ownership requires a formal title transfer [stock, cars].

(1) Ex: the “contents of the garage” would not include a Model T, stocks on the hood, a bank book on the workbench.

b) Caveat—one must expect to find item in such a location.

I. Contracts Relating to Wills—2 types:

1. K to make a will: individual says “take care of me for 6 months & I’ll give you my car.”

a) There’s a valid K;

b) Does wills law support it?

(1) TPC 59—the will must state that the K exists, & the will must state the material provisions.

(2) If it’s not stated in the will, can we inc. it by ref? Yes, if it’s referenced w/ specificity & existed at the time of the will.

2. K not to revoke a will: H’s will & W’s will, give all to e/o. If there’s a K not to revoke, when H dies W can’t make a new will (protects the will they made together if she remarries).

a) Even if there’s a K, you can still revoke it w/ notice to the other at anytime b/f death.

b) If W does revoke, she breaches the K. You can’t change the nature of the vesting, so the prop goes into a constructive trust. The prop goes to the ultimate beneficiaries under H’s will.

c) W’s new will can’t be challenged until she dies. Her beneficiary gets the constructive trust for the benefit of the beneficiaries under H’s will.

3. Begin analysis w/ K law—is there a K? Then to wills law—can we uphold the K?

4. Joint will—1 will w/ 2 people on it. VERY DUMB.

5. Mutual will—separate wills of 2 or more persons that contain similar or reciprocal provisions. Based on a K.

a) Reciprocal will has mirrored provisions—he gets mine, I get hers.

6. Via v. Putnam (p. 323): H’s not making a new will made 2nd wife have to take a forced share by intestacy. RULE: kids as 3rd party beneficiaries under mutual wills of parents, should not be given creditor status when their interest contravene the interests of the surviving spouse under the pretermitted spouse statute. Protection of spouses more than children.

VI. WILL SUBSTITUTE: NON-PROBATE TRANSFERS.

A. Contracts w/ payable-on-death provisions.

1. K’s that avoid probate by paying out to the beneficiary at death.

2. Wilhoit v. Peoples Life Ins. (p. 331): P dies w/ W as beneficiary of his life ins policy. She got the $ & rolled it over as an investment to the ins co, at a different rate than the offered her at first. RULE: you can’t use a will to change the beneficiary designation in an insurance K. It’s a separate K, governed by separate areas of law. The insurance co would never know who to pay.

3. Estate of Hillowitz (p. 336): p/ship agreement in investment group gave his share of the investment club to his W at death. Ct called it a 3rd-party-beneficiary K w/ a pay on death provision.

4. Cook v. Equitable Life (p. 339): H purchased life ins naming W as beneficiary, then they divorced. Divorce decree made no provision for what to do w/ $, H remarries. H tried to change beneficiary in his will; ct would not allow it.

a) W would lose in TX, b/c the gift to a divorced spouse is void.

B. TPC 59A—

C. TPC 68—

D. TPC 89—

E. Multiple-party Bank Accounts.

1. Types: A opens joint acct w/ B, intending—

a) That either A or B is to have power to draw on the acct & the survivor owns the balance of the acct (a.k.a. true joint tenancy acct);

b) That B is not to have the power to w/draw on the acct during life but is entitled to the balance upon A’s death (POD acct);

c) That B is to have the power to draw on the acct during A’s life but is not entitled to the balance at A’s death (agency acct).

2. Include a joint & survivor acct, a payable-on-death acct, agency acct, & a savings acct trust.

3. In TX, the funds during the lifetime of the depositors are allocated depending on what each depositor contributed. Determined by looking at the history of the acct.

4. TPC 442—no multiple-party acct will be effective to transfer to a survivor funds needed to pay debts, taxes, & expenses of administration, including statutory allowances to the surviving spouse & minor children, if other assets of the estate are insufficient.

5. Franklin v. Anna National Bank of Anna (p. 345): joint tenancy sig cards can be defeated by clear & convincing E that the deceased did not intend to give the proceeds of the acct as a gift to the other signatory.

6. TPC 438A—Convenience acct.

a) If acct is established by a party in the names of the party & a cosigner & the terms of the acct provide that the sums on deposit are paid/delivered to the party or to the cosigner “for the convenience” of the party, the acct is a convenience acct.

7. See note 2, p. 349.

F. Joint tenancies.

1. 2 types:

a) Joint tenancy;

b) Tenancy by the entirety.

c) Upon death of 1 tenant, the survivor owns the prop outright, free of any participation by the decedent.

2. Important features:

a) The creation of a JT in land gives the JT’s = interests on creation. The interest given the other JT can’t be revoked during life.

b) A JT can’t devise his share by will.

(1) To devise his part, a JT must sever the tenancy (need agreement of other tenant; creating a TiC) during his life, then devise his part @ death.

(2) This is so b/c @ death, the interest passes to the survivor automatically; there’s nothing for the deceased’s will to act on.

c) A creditor of a JT must seize the JT’s interest during life.

G. Revocable Trusts.

1. The settlor can cancel the trust at any time.

2. Passing of interests by gift:

a) To be effective as a gift, personal prop must be delivered. A gift w/out delivery = nothing.

b) To effectuate a completed gift, the deliverer must feel the “wrench of delivery.”

c) Delivery is separate from the requirement of intent.

d) Delivery may be effectuated by:

(1) Delivery of the thing itself;

(2) If the object is difficult/impossible to deliver, it can be delivered constructively. Only available if you absolutely can’t hand it over.

(3) Classic ex = a key to a box, the box can’t be delivered.

3. Deed of trust: the trust settlor transfers legal title to prop to another person as trustee pursuant to a writing in which the settlor retains the power to revoke, alter, or amend the trust & the right to trust income during lifetime.

4. On the settlor’s death, the trust assets are to be distributed to/held in further trusts for other bene.’s.

5. Revocable declaration of trust: the settlor declares himself as trustee for the benefit of himself during lifetime, w/ the remainder to pass to others at his death.

6. Farkas v. Williams (p. 352): RULE: the beneficiary of a trust must, in the lifetime of the settlor, obtain some interest in the trust prop for the trust to be non-testamentary in nature. The settlor can’t maintain absolute control over the prop & have an inter-vivos trust; Farkas signed trust instruments that he could only revoke the trusts in writing. Ct said beneficiary had “a contingent equitable interest in remainder.”

a) Trusts can transfer prop @ death.

b) Here, Williams has an interest in the trust b/c of the fiduciary duty created by the trust. Revocability does not make much difference.

7. Trust is a mgt. rela. whereby the trustee manages prop for the benefit of beneficiaries.

a) Trustee has legal title (can do whatever an owner would);

b) Beneficiary has equitable title (can’t do what an owner would, but can influence what the trustee does w/ the title).

c) When legal & equitable title merge in 1 person, the trust dissolves.

8. In re Estate & Trust of Pilafas (p. 361): guy created trust & executed a will. The trust could only be revoked in writing, delivered to trustee. When the will was to be probated, they couldn’t find it or the trust documents. Trial ct held that both were revoked; appeals ct reversed. RULE: when the settlor reserves a power to revoke the trust in a particular manner or under particular circumstances, that’s the only way it can be revoked. RULE: if no method for revocation is specified, it is revoked in any manner which sufficiently manifests the intention of the settlor to revoke the trust.

a) Pour-over will: will that allows that anything not devised by the will goes into an existing trust.

b) If you can’t find the will, there’s a presumption of revocation. Not so w/ trusts—see above rules.

9. Problem, p. 368. Even though this is a trust, it has the testamentary function of a will. The bank must accept the revocation order if she is competent. Undue influence is irrelevant. Why? The beneficiary does not get possession until the death of the settlor. If it’s revocable & she’s the sole beneficiary during her life, she can revoke it whenever she wants.

10. State St. Bank v. Reiser (p. 368): Dunnebier created an inter-vivos trust w/ stock of 5 corps; he kept the right to amend or revoke it during his lifetime & had could direct the disposition of p/al & income during his life. He executed a will leaving the residuary of his estate to the trust. He then got the bank to loan him $75K, w/out using any of the trust as collateral. He said he had the stock, but did not tell them it was in a trust. He died still owing the bank, they want to get at the trust to pay the debt. RULE: when a person creates a trust & reserves the right to amend & revoke or to direct the disposition of p/al & income, settlor’s creditors may satisfy debts—to the extent not paid by the estate—with trust prop over which the settlor had under his control at the time of his death as would’ve enabled him to use the trust assets for his own benefit. They can’t get what’s poured-over at the settlor’s death.

a) Factors determining control:

(1) Whether t/or can use or control the assets;

(2) IRS views irrevocable trusts as the prop of the settlor.

(3) To get around this, make it irrevocable.

b) It’s important that the creditors could reach the trust during his life (b/c he had control over prop & income).

c) RESTATEMENT 2D TRUSTS: in the absence of a statute, creditors can reach a revocable trust either during the settlor’s life, or after his death. Scott on Trusts says the same thing—the power to revoke is not prop, it’s a power.

d) TX RULE: if the trust is revocable by the settlor, his creditors can reach the entire trust prop, even if the settlor does not retain any type of beneficial interest.

H. Pour-over wills.

1. Passes its residuary into an existing inter-vivos trust at t/or’s death.

2. TX RULE: if you have an existing inter-vivos trust that is added to (by pour-over will, etc), those assets are treated as if added to the trust by the settlor.

a) The pour-over is seen as being inter-vivos, even though created at death.

3. Clymer v. Mayo (p. 375): D’s wife made a will naming D beneficiary. She also created a trust for the residuary to pour into. After they divorced, they forgot to take his interest out of the trust. RULE: in the absence of contrary intent, a divorce will revoke provisions of a spouse’s pour-over trust that favor the former spouse.

a) Why not use inc. by ref? B/c the trust was not in existence at the time the will was executed.

b) The trust & will were considered 1 testamentary plan & so, a gift to a surviving ex-spouse was void.

4. TX RULE: likely the same outcome as Clymer; our will law also voids the gift to an ex-spouse in a will.

I. Revocable Trusts in Estate Planning.

1. Idea is to reduce the estate of t/or to avoid taxes at death.

2. See notes 386–95.

3. W/ ancillary probate, you get real prop probated in the state in which it exists after you probate the will 1st in the state where t/or is domiciled.

4. TX allows you to file a certified copy of a will probated in another state right in the real prop records. You don’t have to go through ancillary probate.

J. Planning for Incapacity.

1. Durable PoA: unlike an ordinary PoA b/c it is effective even after the p/al becomes incapacitated. Durable continues throughout incapacity until p/al dies.

a) Agent/attny in fact = person who has power under the PoA.

b) Any power of attny terminates @ death.

c) Can be terminated at any time, governed by the law of agency.

2. Not needed when you have a trust that allows for the care of the settlor during his life.

3. TPC 490—statutory form. You have to choose whether you want it to be effective immediately or “springs-up” when person is incapacitated.

a) Requires that a notary be present, the agent does not have to be.

4. Franzen v. Norwest Bank (p. 397): H executed a revocable trust in favor of he & his W w/ Norwest as trustee. After H’s death, W told Norwest she wanted to keep the trust alive for her life, remainder to nephews. But, she moved to another state & gave a PoA to her brother; he wanted to revoke the trust by its terms. RULE: a PoA that appears to give broad powers should be narrowly construed, but the authority to amend or revoke trusts can be conferred w/out specifically referring to the trusts by name. No CL requirement of specificity; agency must be used for p/al’s benefit.

a) You 1st have to consider whether the trust is amendable, etc b/f allowing the attny in fact to act.

5. Directive to Physicians & Family Circumstances (“Living Will”)—syllabus.

a) Don’t put the directives for how you want to be buried in the will; you’re usu. planted b/f they look at it.

b) The directive is done when the person is competent.

c) You now have to specify that you also want nutrition & hydration removed.

d) The one in syllabus also includes a medical PoA, you can combine the 2.

e) These can be revoked any way the person wants to.

f) Look at the definitions in the syllabus.

6. Anatomical Gift Act: you can decide what you want done w/ your organs.

a) Your corneas can be taken w/out your permission.

VII. INTERPRETATION OF WILLS.

A. Admission of Extrinsic E.

1. Mahoney v. Grainger (p. 410): Sullivan made a will leaving most of her shit to 2 first cousins, the rest equally among 25 first cousins. The lawyer made the will to give the residuary to her heirs at the time of her death. This heir was her maternal aunt. Cousins challenged, saying that her comment about the 25 cousins should be admitted to show testamentary intent. RULE: a will duly executed & allowed by the ct must, under the statute of wills, be accepted as the final expression of the intent of the t/or. Finding otherwise makes every will challengeable.

2. Ambiguities.

a) Patent: appears on the face of the instrument.

b) Latent: does not appear on the face.

c) RULE: extrinsic E freely received to determine intent.

3. Plain meaning RULE: a plain meaning in a will can’t be disturbed by the intro of extrinsic E that another meaning was intended.

4. See In re Estate of Smith, note 2, p. 412.

5. Personal use exception: extrinsic E that shows that the t/or always referred to a person in an idiosyncratic manner is admissible to show that the t/or meant someone other than the person w/ the legal name of the legatee.

6. Fleming v. Morrison (p. 414): guy has a will made & he executes it to get a chick into bed. He signed it & as far as the witness knew, he had testamentary intent. Ct allowed E from the lawyer that he had no testamentary intent. RULE: t/or must have testamentary intent b/f both witnesses who attest.

a) What could the lawyer have done when he found out the will was a sham? Talk to the client about not using the will.

7. Estate of Russell (p. 417): will gave part of woman’s shit to a dog. He can’t take it, so the question is—what happens to it? Ct says that the gift lapses & goes into the residuary. Ct would not allow extrinsic E of the heir at law getting the residuary b/c there was no ambiguity.

8. Ambiguities examples.

a) Will—I leave $6K to my nephew Ben. There are 2 nephews named Ben. Latent.

b) Will—I leave my beach home in Kemah as follows: 25% to Ben, 25% to Jerry, 50% to Bartles, 25% to James. Patent ambiguity; extrinsic E may be admitted to even out the percentages (no one will be squeezed out).

9. Extrinsic E does not come in to correct mistakes.

10. A mere mis-description of prop does not make the gift void; one that is so terribly wrong may cause the gift to fail. We won’t second guess the testator.

11. Tuttle v. Simpson (TX, supp.): guy died & left his wife a “20 acre strip on the north end” of a 97.85 acre strip tract he owned. Wife wanted to bring extrinsic E of what the will meant. RULE: if a term of the will is capable of more than 1 construction, E of extrinsic facts is admissible to show the intent of the t/or.

B. Admission of Extrinsic E to correct mistakes.

1. Erickson v. Erickson (p. 427): dad made will leaving his stuff to his future wife, Dorothy, & to his kids if she predeceased him. He married Dorothy 2 days later; he died after 8 yrs. Statute revoked wills upon marriage. Kids contested will, saying it did not allow for the contingency of marriage. Probate ct would not allow extrinsic E of dad’s intent. RULE: extrinsic E is admissible to establish the intent of a t/or that his will is valid notwithstanding a subsequent marriage if a scrivener’s error led the t/or to believe that it would be valid. 3 reasons to admit a scrivener’s mistake:

a) There is no discernable policy difference for distinguishing b/t innocent mistakes & fraud, duress, or undue influence when it comes to extrinsic E.

b) The risk of subverting the intent of the t/or is no greater than the risk of enforcing an instrument that misstates the intent.

c) The narrowness of the exception would not likely give rise to a proliferation of groundless will contests.

2. Intent must be shown from the language of the will, not through extrinsic E.

3. TX does not adopt this rule; if the scrivener makes a mistake too bad b/c of the privity bar.

C. Death of Beneficiary b/f death of t/or.

1. RULE: all gifts made by will are subject to a requirement that the devisee survive the t/or, unless the t/or specifies otherwise.

2. Lapsing Devises—see p. 438. Default rules.

a) Specific or general devise: if a specific/general devise lapses, it falls into the residue.

b) Residuary devise: if the devise of the entire residuary lapses (b/c the sole residuary devisee or all residuary devisees predeceased the t/or), the heirs of the t/or take by intestacy.