Decedents' Estates July 2003 Flashcards
(4 cards)
Summary
Blackacre is distributable to Earl under the terms of the valid holographic will and the balance of the estate is distributed as follows: $100,000 to Carrie under the 1988 will, $2,500,000 to Fred under the 1996 will, and the residue to Doris under the 1988 will. Adam and Greg take nothing. This distribution results from the fact that the 1988 will was not wholly revoked by destruction but only partially revoked by the inconsistent provisions of the codicil. Furthermore, Greg is not entitled to a forced share because he was alive when the wills were signed.
The 1988 will was not revoked because it was physically destroyed by someone other than the testator and not in the testator’s presence.
Most states require that a revocatory act (such as physical destruction of a will) by someone other than the testator be done in the testator’s presence, orat least in the testator’s “conscious presence,” and at the testator’s request. See, e.g., Uniform Probate Code (UPC) § 2-507. Therefore, in most states, the 1988 will would not have been legally revoked. Testator asked Lawyer to destroy the will, but the destruction did not occur in Testator’s presence.
Although the 1988 will was physically destroyed, it was not revoked and the unexecuted copy is available to prove its content.
Because holographic wills are valid in State A, the 1996will can be probated. The 1988 will was revoked by the 1996 holographic will only to the extent that it was inconsistent with the later holographic will.
The 1996 document is a holographic will because it is entirely in Testator’s handwriting; under the laws of State A holographic wills are valid and therefore the 1996 will is entitled to be probated. The fact that the 1996 will is entitled to be probated, however, does not preclude the possibility that the 1988 will can also be probated so long as it was not revoked. Wills may be revoked either by physical destruction, accompanied by an intent to revoke, or by the execution of a subsequent will. Typically, if a will has been executed and then another will is executed, the latter will revokes the former will only to the extent that they are inconsistent, unless, of course, the latter will has an express revocation clause. See generally UPC § 2-507(a)(1). Here, the 1996 will did not have an express revocation clause. Because it did not have a residuary clause (it contained only a specific bequest and a general bequest), its terms are not wholly inconsistent with the terms of the 1988 will. In fact, the only inconsistency between them is the disposition of Blackacre. Under the 1988 will, Blackacre was bequeathed to Adam; under the 1996 will, it was bequeathed to Earl. Since the later will trumps the earlier will, Blackacre is distributable to Earl.
Assuming that both documents can be probated for the reasons stated, the probate estate should be distributed as follows: Blackacre to Earl, $100,000 to Carrie, and $2,500,000 to Fred; Doris, the residuary legatee under the 1988 will, takes the remaining $2,400,000. Adam takes nothing.
Greg, Testator’s child and only heir, is not entitled to any share of Testator’s estate because he is not a pretermitted heir.
In most jurisdictions, pretermitted heir statutes have been enacted permitting children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the deceased testator’s will. Typically, these statutes apply only if the child was born or adopted after the execution of the will. See generally UPC § 2-302. Here, Greg was alive when both the 1988 will and the 1996 will were executed. Thus, Greg would not be entitled to a “forced share” under the typical pretermitted heir statute. However, if the statute protects children born before the will was executed who were not expressly disinherited, then Greg would take the entire estate.
