Decedents' Estates Flashcards
(13 cards)
Summary
Under the doctrine of integration, all pages of a will that are together when the last page is signed and witnessed are deemed to have been validly executed. Thus, Testator’s will is valid. Testator’s handwritten codicil is invalid because it was neither signed by Testator nor witnessed. However, although crossing out a portion of a will (here, the bequest to Sister) would normally revoke that bequest under this state’s law, because of the doctrine of dependent relative revocation, Testator’s bequest to Sister was not revoked because it appears that Testator struck out this bequest on the mistaken assumption that the handwritten codicil was valid. In all states, a gift to children includes adopted and marital children. In most states, a gift to children would include a nonmarital child if clear and convincing evidence of paternity was available. Although Testator appears to have intended to benefit only some of his children, Abby and Bruce, the will gives the residuary estate to all of Testator’s “children,” and most courts do not allow the admission of extrinsic evidence to alter the plain meaning of a will. Thus, Sister would receive $20,000 from Testator’s estate and the balance would likely be distributed, in equal shares, to Abby, Bruce, Carl, and Don, if Don can establish Testator’s paternity. If the will was not validly executed Testator would have died intestate and his estate would be distributed only to his heirs. His heirs would be Abby, Bruce, and Carl in all states and, depending upon the state rules relating to proof of paternity, possibly Don.
Did Testator execute a valid will when he did not sign the only page containing bequests, but all three pages of the will were physically present at the time he signed the last page and Testator intended them to be his will?
Because all pages of Testator’s will were present at the same time that Testator signed the last page of his will and the pages were intended by Testator to be his will, the will is valid.
Rule and Application
Under the doctrine of integration, a multi-page will is valid even if only the last page is executed as long as the proponent of the will can establish that all pages were physically present and together when the testator and witnesses signed the last page of the will and that each page was intended by the testator to be part of his will. See THOMPSON ON WILLS § 124 (3d ed. 1947); 2 PAGEON THE LAWOF WILLS §§ 19.10, 19.11 (2003). Here, all three pages of the will were present and together when Testator signed the will, and Testator intended the document to be his will. The proponent of the will may also rely upon a presumption that all pages of the will were present and together when the last page was signed if the pages, when read together, set out an orderly dispositional plan. See THOMPSON, supra, § 105; Comment, Wills: Integration and Incorporation by Reference, 4 BAYLOR L.REV. 211 (1952); Comment, Wills—Integration, 50 MICH.L.REV. 915 (1952). Here, page 1 of the will contained a bequest consistent with Testator’s instructions to the attorney, and this page was followed by other pages containing matters commonly included in wills.
In sum, the will was executed properly and is valid.
Was Testator’s handwritten codicil valid?
Testator’s handwritten codicil to the will is invalid because state law requires all testamentary provisions to be signed by the testator and witnessed by two attesting witnesses.
R & A
Under state law, all testamentary provisions, to be valid, must be signed by the testator and witnessed by two attesting witnesses. Here, Testator attempted to change the bequest to Sister with a handwritten, unsigned, and unwitnessed writing. This provision is ineffective under state law.
Did Testator revoke the bequest to Sister by striking out the clause in his will giving her $20,000?
Notwithstanding the fact that Testator crossed out the bequest to Sister, the bequest is not revoked. Under the doctrine of dependent relative revocation, a revocation based on a mistaken assumption of law or fact (here, the validity of the handwritten bequest) is not given effect if it appears that the testator would not have revoked his will or some portion thereof had he known the truth.
R & A
Testator crossed out the bequest to Sister with the intention of substituting forit a larger bequest. This alternative bequest was invalid because it was neither witnessed nor signed by Testator. (See Point Two.)
Under the doctrine of dependent relative revocation, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation is ineffective if it appears that the testator would not have revoked the bequest had he had accurate information. Here, Testator’s cancellation of the bequest to Sister was motivated by a desire to give Sister more money. Had Testator known that the alternative larger bequest would be invalid, he would not have wanted to cancel the lesser bequest to Sister, leaving her with nothing at all. Thus, under the doctrine of dependent relative revocation, the revocation of the bequest to Sister is ignored and she is entitled to the $20,000. See WILLIAM M.MCGOVERN &SHELDON F.KURTZ,242–43 (3d ed. 2004).
Does Testator’s gift to “children “include adopted children and nonmarital children?
The bequest to “my children” would include Testator’s two biological children born during marriage and his adopted stepchild. It is unclear whether it would include Testator’s nonmarital child.
R & A
State laws generally provide that the word “children” in a will should be interpreted consistently with the definition of the word “children” used in determining rights to intestate succession. See, e.g., UNIF. PROBATE CODE § 2-705.
Biological children born to a married couple and adopted children are included within the category of children entitled to take through intestate succession. Thus, Abby, Bruce, and Carl are all included in Testator’s bequest to his “children.” See MCGOVERN &KURTZ, supra, at100– 04.
In all states, a nonmarital child (here, Don) is included within a bequest to children only if paternity is established under the relevant statute. In most states, paternity for purposes of intestate succession may be established by evidence of subsequent marriage of the parents, by acknowledgment by the father, by an adjudication of paternity during the life of the father, or by other clear and convincing evidence. See JESSE DUKEMINIER &STANLEY M. JOHANSON,WILLS, TRUSTS,AND ESTATES 115 (6th ed. 2000). It is unclear whether Testator’s paternity of Don was adjudicated or acknowledged during Testator’s lifetime; it is also unclear whether there is clear and convincing evidence of Testator’s paternity.
In sum, it is uncertain whether Testator’s nonmarital child, Don, will be included within the bequest to Testator’s “children.”
Note
[NOTE: If evidence of Testator’s paternity is not currently available, Don might seek an order requiring decedent’s marital children to submit to blood testing in order to establish Testator’s paternity; some courts have granted such petitions. See Sudwischer v. Estate of Hoffpauir, 589 So. 2d 474 (La. 1991). In recent years, some courts have also permitted exhumation of a decedent’s remains for purposes of establishing paternity. See Brancato v. Moriscato, 2003 WL 1090596, 34 Conn. L. Rptr. 208 (Super. Ct. 2003). Other courts have refused to grant such requests. See In re Estate of Bonanno, 745 N.Y.S.2d 813 (Sur. Ct. 2002) (request for exhumation denied when postmortem DNA analysis of decedent’s blood samples established that petitioner was not decedent’s son).]
May a court reform Testator’s will when Testator’s likely intention conflicts with the will as drafted?
Most jurisdictions disallow reformation of a will to correct a mistake. In those states, the bequest to “my children” would stand despite Testator’s apparent intention to benefit only his biological children, Abby and Bruce.
Rule
The fact that Testator identified only Abby and Bruce as his children when talking with his lawyer is unlikely to result in an interpretation of the will limiting the word “children” to Abby and Bruce. Although the “controlling consideration in determining the meaning of a donative document is the donor’s intention” (RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 10.1 (2003)), a majority of jurisdictions bar the admission of extrinsic evidence to vary the literal meaning of the words used in a will and refuse to allow reformation of a will to correct a mistake. “Hypothetical or imaginary mistakes of testators cannot be corrected. . . . The only means for ascertaining the intent of the testator are the words written and the acts done by him.” Sanderson v. Norcross, 136 N.E. 170, 172 (Mass. 1922). Under this formalist approach, Testator’s attorney could not testify that Testator intended to leave his estate to only Abby and Bruce, based on their conversations.
Application
In recent years, a few states have begun to move away from the formalist approach and toward the more liberal approach adopted in the Restatement (Third) of Property. Under the Restatement, a court may reform even an unambiguous donative document based on clear and convincing evidence of (a) a mistake of fact or law or (b) the donor’s intention. See RESTATEMENT (THIRD) OF PROPERTY: WILLS AND OTHER DONATIVE TRANSFERS § 12.1; Estate of Herceg, 747 N.Y.S.2d 901 (Sur. Ct. 2002) (reforming will based on drafting attorney’s testimony that omission of particular beneficiary was due to computer error); UNIF. PROBATE CODE § 2-805 (2008 amendment). Using this approach, a court would admit the attorney’s testimony to show that Testator’s bequest to “children” was based on a mistake of law (the meaning of “children” for purposes of intestate succession) and that Testator intended to benefit only Abby and Bruce. However, it is unclear whether such testimony would meet a clear and convincing evidentiary standard given that Testator did not discuss his intentions toward Carl and Don with the attorney.
In sum, Abby and Bruce will certainly take a share of Testator’s estate. It is highly probable, but not certain, that Carl will. It is uncertain whether Don will as well, depending on whether Testator’s nonmarital children are included in the class gift to “children” under state law. See Point Four.
