Decedents' Estates Flashcards
(10 cards)
Summary
A will can be revoked by a physical act, such as a cancellation, when the marks of cancellation are placed on the text of the will with the intent to revoke the will. Here, the words the husband wrote on the will evidence only an intent to have the will re-evaluated. Thus, the will was not revoked and its terms, subject to a possible claim by his daughter, will be given effect.
Under some state pretermitted (a/k/a “afterborn” or “omitted”) child statutes, the husband’s daughter, born after the execution of his will, would be entitled to that share of his probate estate she would have taken by intestacy unless the will otherwise provides. In other states, however, she would not be entitled to a share of the husband’s probate estate because his will left the bulk of his probate estate to his wife, the daughter’s other parent. Here, there are two reasons the daughter may not take a pretermitted child’s share: (1) the phrase “regardless of whether we have children” evidences the husband’s intent that the daughter not take that share, or (2) the assumed state law bars the share if the will left the whole or substantially all of the estate (as here) to the child’s surviving parent.
Under the state statute, the wife is entitled to a one-half share of the revocable trust created by the husband. It is unclear whether the remaining half would pass to the wife as residuary legatee under his will or to University, the named remainderman of the revocable trust. Case law is divided on this point.
[NOTE: If the will was revoked, the husband’s probate estate of $300,000 would pass $150,000 to each of the wife and the daughter and nothing would pass to the friend; if not revoked, the friend takes $5,000 and the wife $295,000 from the probate estate, subject to any claim the daughter might have. Since the pretermitted child’s claim is weak here, the conservator for the daughter has an incentive to challenge the will.]
Was the husband’s will revoked by physical act because of the handwritten statement across the bequests to his wife and his best friend?
The husband’s will was not revoked because there is no evidence that he intended to revoke the will when he wrote on it.
Rule
A will may be revoked by the execution of a new will or by some physical act, such as cancellation or other writings on the will, if the testator (or someone acting at the testator’s direction) performs the physical act with the intent to revoke the will. The burden of proof to establish that a validly executed will has been revoked is upon the party seeking to revoke the will. See WILLIAM .MCGOVERN,SHELDON F. KURTZ &DAVID M. ENGLISH,WILLS,TRUSTS & ESTATES 260 (4th ed. 2010).
Application
Here, that burden cannot be met. The husband’s handwritten statement on the will does not show intent to revoke the will. Instead, it suggests that he wanted to re-evaluate his overall estate plan in light of the fact that a large portion of his assets were held in the revocable trust and that he did not believe that either his wife or his daughter was adequately provided for. The phrases “estate plan should be changed” and “call lawyer to fix” show intent to do something in the futureafter consultation with his attorney, not to revoke the will now. In addition, the discovery of the documents found on the husband’s desk, his sudden death, and the voice message on his phone from his lawyer suggest that the husband had only recently discovered the problem and called his lawyer to work it out, not that he had revoked his will.
Thus, because the will was not revoked, the friend should take $5,000 under the husband’s will and his wife should take $295,000, the balance of the probate estate (possibly increased by assets from the trust (see Point Three) but subject to the daughter’s claim, if any (see Point Two)).
Notes
[NOTE: Alternatively, the markings on the willmight be construed as evidencing an intent to revoke the will. The husband appears to have recognized that the will made no sense in light of his family circumstances. The markings state thatthe plan should be changed and that the husband will take stepsto make that change by calling his lawyer which, in fact, he did. Thus, so the argument goes, the will was revoked by cancellation. If the will was revoked, then the husband died intestate and half the estate would pass to the wife and half to the daughter under theintestacy law of the state.]
[NOTE: The argument claiming that there was an intent to revoke is not as strong as the argument in favor of no revocation because of the language of futurity in those markings.]
Is the husband’s daughter, born after the execution of his will, entitled to a share of his probate estate?
Most likely the husband’s daughter is not entitled to a pretermitted child’s share. The phrase in the will “regardless of whether we have children” suggests that the husband wanted the wife to take even if they had children, thus evidencing his intent that the pretermitted child statute not apply.
Rule and Application
Most states have “pretermitted child” statutes aimed at ensuring that children born after the execution of a will are not inadvertently disinherited. Many of these statutes provide that, under certain circumstances, a child born to a testator after the testator’s will is executed is entitled to whatever share of the testator’s estate the child would have received if the testator had died intestate. In states with such statutes, bequests in favor of an afterborn child’s other parent are irrelevant. See, e.g., IOWA CODE § 633.267 (a surviving spouse who is the parent of the decedent’s surviving child is entitled to the entire estate (see IOWA CODE § 633.211), and the daughter would take nothing); 755 ILL.REV.STAT.5/4-10 (a surviving spouse is only entitled to one-half of an intestate decedent’s estate (see 755 ILL.REV.STAT.5/2-1), and the daughter’s share would be one-half of the estate). However, a testator can avoid the consequences of such a statute if the will evidences intent to do so. Here, that seems to be the husband’s intent as evidenced by the phrase “regardless of whether we have children.”
In other states, an afterborn child is denied a share of the decedent parent’s estate if the decedent parent bequeathed all or substantially all of his estate to the child’s other parent. See, e.g., UNIF. PROB. CODE § 2-302(a)(1). In states that follow the UPC approach, the daughter would not be entitled to any share of the husband’s estate because her mother (the wife) is entitled to substantially all of the husband’s estate.
Note
[NOTE: Regardless of how examinees conclude Point One, there were enough signals in the question to have prompted discussion of this issue even if they concluded that the will had been revoked.]
How should the assets of the revocable trust deemed illusory under state law be distributed upon the husband’s death after the wife claims her one-half share in those assets?
The wife is entitled to take one-half of the revocable trust under the state statute. Either the wife, as residuary legatee under the husband’s will, or University, as remainderman of the trust, is entitled to the other half.
Rule and Application
Under the law of the state, the wife is entitled to a one-half share of the revocable trust created by the husband because the trust was in existence during the marriage. This leaves open the question of who is entitled to the balance of the trust’s assets. Under the statute, the trust is characterized as “illusory.” This characterization is ambiguous regarding whether it is just illusory as to the wife or illusory for all purposes. If the former, then the wife is entitled to her half share, as that share only is illusory, and the balance of the trust (not deemed illusory) should pass to University, as the designated remainderman. See Montgomery v. Michaels, 301 N.E.2d 465 (Ill. 1973). On the other hand, if a court deems the trust illusory for all purposes, then the trust is void and the trust assets are distributed to the wife as residuary legatee of the husband’s estate, assuming that the will is valid. See Newman v. Dore, 9 N.E.2d 966 (N.Y. 1937). If, however, the will is invalid, the trust assets pass equally to the wife and her daughter as intestate property.
