Decedents' Estates July 2006 Flashcards
(4 cards)
Summary
Wife’s estate should be distributed as follows:$1,000 to Ted, pastor of First Avenue Church, and the residue to Child. Child is a contract creditor of the Wife’s estate because Wife and Husband signed a contractual will in 1995. Robin is entitled to nothing because the attempted bequest to her was evidenced by an unattested writing.
John, who would have been entitled to the bulk of Wife’s estate under the 2002 will, takes nothing because Wife’s entire estate is exhausted by the claims of Ted and Child. John would take from Wife’s estate only if the 1995 will was not contractual and the 2002 will could not be successfully contested.
The joint will executed by Husband and Wife constituted their contract that the survivor would not change their joint plan for distribution of their assets. As a result, Ted and Child can enforce the provisions of the 1995 will without contesting the 2002 will.
Although the existence of a joint will does not by itself establish the existence of a contract between the two testators to dispose of their property in a certain way, a will contract is created when the joint will includes material provisions of the contract or has language in it that refers to a contract between the testators. UNIF. PROBATE CODE§2-514. Here, the language of the joint will—“each of us agrees” —should be more than sufficient to establish the existence of a contract between Husband and Wife to dispose of the property in a certain way. The contract became irrevocable upon the death of Husband. See 1 William J. Bowe & Douglas W. Parker, PAGE ON THE LAW OF WILLS § 10.2 (1960) [hereinafter “PAGE ON WILLS”] (“On the death of one party, leaving in effect a will which contains the provisions prescribed by the contract, the transaction is said to become an irrevocable contract as to the survivor.”); see also Estate of Wiggins, 360 N.Y.S.2d 129 (App. Div. 1974). Because the terms of the contract mandated that Wife, the survivor, distribute all of “her property” in accordance with the joint plan of distribution, Wife was obligated to distribute not only the couple’s joint property, but also the property she acquired after Husband’s death, in accordance with the will contract as reflected in the 1995 joint will.
The will contract does not by itself invalidate Wife’s 2002 will. Instead, the will contract makes the beneficiaries under the joint will contract creditors of Wife’s estate. See 1 PAGE ON WILLS § 10.3. Here, the contract required distribution of the entire estate to the beneficiaries of the joint will. As a result, although the 2002 will would properly be admitted to probate, the beneficiaries under that will would take nothing; rather, the entire estate would be paid to the creditors, Child and Ted (see Point Two), under the prior will.
If applicants conclude that the phrase “each of us agrees” does not sufficiently state contractual intent, then the 1995 will would not be contractual and would be revoked by the 2002 will to the extent they were inconsistent. Therefore, Ted would take $1,000. (See Point Two.) Child would take only $100,000 under the 2002 will and John would take the residue.
Under either the doctrine of facts of independent significance, or the general rule of construction that wills “speak at the time of death,” Ted, the current pastor of First Avenue Church, takes $1,000.
In general, a testator must identify beneficiaries in the will itself; a testator may not change will beneficiaries without testamentary formalities. The doctrine of facts of independent significance, however, gives effect to a will provision that disposes of property “by reference to acts and events that have significance apart from their effect upon the dispositions made by the will.” UNIF. PROBATE CODE § 2-512; see also 2 PAGE ON WILLS § 19.34. The principle behind the doctrine is that the possibility of undue influence or fraud is reduced when the change in beneficiary has significance apart from the change in the testator’s will. Hence, since the church was unlikely to choose its pastor in order to assure that the pastor chosen would inherit $1,000 from the estate of Husband and Wife, that fact—the pastor’s identity—has significance apart from the bequest. Hence, the doctrine would give effect to the $1,000 bequest to the then-current pastor, which was Ted, not George.
By contrast, the memorandum in the safe deposit box directing that $1,000 be distributed to Robin cannot be given effect under this doctrine because that memorandum had no purpose independent of an attempt to make a bequest. See 2 PAGE ON WILLS § 19.34 at 122; see also Point Three.
The bequest to the pastor also is effective under the general rule of construction that a will “speaks” as of the time of death and at that time Ted is the only person qualifying for the bequest to the pastor of the First Avenue Church.
[NOTE: Applicants could reach the same result using the so-called “plain meaning” rule. Under this rule, Ted takes because the words in the will are unambiguous that the bequest passes to the church pastor who survives Wife.]
The $1,000 bequest to Robin is invalid because it is not evidenced by a testamentary instrument.
While a will may incorporate an attempted bequest in a document not executed with the formalities required of a will, here the attempted bequest to Robin in such a document is invalid because the incorporation by reference doctrine requires that the document to be incorporated be in existence at the time the will was signed. Here the document to be incorporated was executed after both the 1995 and the 2002 wills were executed.
Furthermore, even if the jurisdiction had adopted a statute like Unif. Probate Code§2-513, the bequest would still be invalid. That statute permits tangible personal property to be disposed of in accordance with the terms of an unattested memorandum without regard to when it was executed. However, §2-513 applies only to tangibles; here, Wife attempted to bequeath Robin money, which is not a tangible.
Lastly, this bequest cannot be sustained under the doctrine of independent significance because the memorandum’s only significance was to make a testamentary gift.
[NOTE: Applicants who assume that the memorandum is in Wife’s handwriting and that holographic works are valid under state law could conclude that the $1,000 gift to Robin was valid. However, no facts state that the memorandum was in Wife’s handwriting.]
