Legal rights relating to succession to property Flashcards
(155 cards)
1
Q
Four possibilities on who takes
A
(1) No one
(2) the government
(3) the government decides private parties
(4) the decedent decides private parties
2
Q
Holding for Magoun v. Illinois Trust & Savings Bank
A
The estate tax is a tax on succession, not property, and is a conditioning of that succession, a legal not natural right
3
Q
Holding for Knowlton v. Moore
A
Federal estate taxes are constitutional, and are not an unconstitutional nonuniform tax
4
Q
Holding for Hodel v. Irving
A
the nature of the change in the rules of descent was such as to amount to a taking (removing a stick from the bundle)
5
Q
Holding for Babbitt v. Youpee
A
While descent and devise might be legal and not natural rights, they cannot be taken within compensation
6
Q
What is the priority of claims?
A
(Secured creditors as claimants)
Close Family members
Unsecured creditors
Government via taxes
Surviving spouses
Allocation by Decedents (wills, etc)
Intestate succession/default rules
7
Q
UPC 2-402
A
Homestead allowance for spouse or minor/dependent children of $22.5k
8
Q
Homestead allowance
A
Amount of money out of the probate estate taken immediately and before creditors
9
Q
UPC 2-404
A
Family allowance: Executor’s discretion to give allowance of up to $27k to surviving spouse
10
Q
UPC 2-403
A
property beyond control of the decedent that goes to the household, including furniture, cars, furnishings, appliances, effects up to $15k
11
Q
Do exes take a homestead, family, or exempt property allowance?
A
No, if divorced
12
Q
Do domestic partners take a homestead, family, or exempt property allowance?
A
Used to be no, as one needed to be a spouse. UPC now advises to include them
13
Q
Are the homestead, family, and exempt property allowance waivable?
A
Yes; UPC 2-213
14
Q
How long as there been a federal tax on estates in the US?
A
Since 1797
15
Q
What is the current federal tax on estates?
A
40% of the amount above $12.060 million, including $16k/person/year
comes down to $6 million in 2025
16
Q
What is portability in spouse estate taxes?
A
Whatever is left over from the first, dead spouse’s share is moved to the second spouse and added to it
17
Q
What are the two kinds of state taxes on descent?
A
Estate taxes
Inheritance taxes
18
Q
What is an estate tax?
A
tax on the net value of the gifts given out the estate and the estate itself
19
Q
What is an inheritance tax?
A
tax on the value a person has received in gifts and inheritances
20
Q
What is the spousal elective share?
A
a portion of the estate given to the spouse in some situations
21
Q
Once family, creditors, and the government takes, who takes?
A
The people designated by will or will substitute
22
Q
What happens if the decedent does not create a will or will substitute?
A
The remaining estate passes via intestacy
23
Q
Who are two people concerned with allowing devisement and descent of property?
A
FDR and Blackstone
24
Q
On policy, what method of granting items makes the most sense in terms of utility?
A
It varies, based on the sentimental and monetary value of the item
25
Why is Forbes wrong about estate taxes?
very few actually need to pass through estate taxes, and those that do can usually readily afford them
26
What are the policy reasons for allowing decedent control?
Preventing theft, encouraging children to care for parents
27
What are some policy reasons for not allowing decedent control?
Encouraging equity/meritocracy, advancing justice and fairness, encourages spending on public goods and not on private economic and political spending
28
Why is a tax on income not enough?
Estate and wealth taxes get after the additional wealth passed along outside of income
29
Does an attorney owe a duty to the intended beneficiary of a will?
Common law: no, no privity
Modern rule: maybe
30
What are the possible exceptions to the modern rule as to lawyer duty to will beneficiaries?
a. no duty to beneficiary to get the client to execute the will
b. no duty to beneficiary if the will is not executed
c. no duty if inappropriate to find one on balance
31
What are the six balancing factors to determine if a lawyer does or does not have a duty to an intended beneficiary?
1. The extent to which the transaction was intended to benefit the nonclient plaintiff
2. the foreseeability of harm to the plaintiff
3. the degree of certainty that the plaintiff suffered injury
4. The closeness of the connection between the defendant's conduct and the injury
5. preventing future harm
6. extent to which the profession would be burdened by finding liability
32
What is the holding in Parks v. Fink?
When the attorney tries to get the client to sign but they decline to do it, the attorney should not be liable for the decision or harms. To hold otherwise would injure the attorney-client relationship
33
Example 2.01
A lawyer prepares a will for the client, which the lawyer sends by email to the client. The client tells the lawyer that it says exactly what the client wants. The client gets sick and enters the hospital. On his death bed, the client repeatedly emails and calls the lawyer, imploring the lawyer to bring the will to him to be executed. The lawyer fails to do so and the client dies.
The estate sues and intended beneficiary sues. Can it recover?
Common law: estate can sue, and would win almost nothing (no injury to the estate); beneficiary cannot as no privity
Modern rules:
A. no duty to beneficiary if no will
B. no duty to get it executed, so no suit
C. under the balancing test, maybe
34
What does Stake think about the modern duty rules to intended beneficiaries?
He thinks that they should be liable through the duty to the client for damages caused by that malpractice, and no more
35
What does Stake think about the economics of making lawyers liable to potential beneficiaries?
Lawyers will have their costs increase, either by spending more time per will or by having more insurance payments. Those costs would then be passed off to clients, who are hurt, and some simply do not get the will, making them worse off. However, it may reduce litigation
36
What is the holding of A. v. B.?
In a situations where an attorney/firm is representing both spouses in reciprocal wills, the attorney/firm must balance a duty of confidentiality to one and a duty to inform to the other. They may breach that duty to rectify a client's fraud, which is the case here.
37
What are the problems with a reciprocal will?
Survivor can change the will, the survivor could remarry and then have their new spouse take an elective share, or one spouse could be hiding pertinent information from the other
38
What are ways to avoid the reciprocal wills trap?
* get a waiver for conflicts
* get express waiver allowing lawyer to reveal information to the other client
* inform clients of the risks of joint representation, such as revealing information and conflicts of interest
* speak to each client separately to ensure there is no pressuring
39
What are the bars to succession?
*historically, slavery
*alienage, but UPC 2-111 does not allow this
* being a minor is a limit on control, but not legal control
* transfer of expectancy, where under the common law it has no effect, but in equity, it may still be enforced
*renunciation or disclaimer, UPC 2-1105
*bad actions, such as abandoning a child, UPC 2-114
*living in a state of adultery and/or desertion
*slayer rule, which some states have expanded to include abusers
40
What are the four systems to oversee property?
Guardianship of the property
Conservatorship
Custodianship
Trust
41
UPC 2-111
ban on alienage bars to inheritance
42
UPC 2-1105
renunciation/disclaimer rules, wherein the successor is treated as dead at the time of the decedent's death, even if done after
43
D dies intestate, survived by three children, X, Y, and Z. X disclaims. Z is a minor. What is the result?
Y and Z take; UPC 2-1106(b)(3)(B)
44
UPC 2-1106
definitions and operation of disclaimers
45
Why would someone disclaim?
* may change share in succession which incentivizes disclaimer
* may reduce taxes, which means an attorney must notify that this is an option
* avoiding creditors (this does not work in bankruptcy usually and does not work against the IRS)
46
How can creditors avoid the debtor disclaiming?
may force renunciation of disclaimer into the contract for the debt
47
What is the holding of Drye v. U.S.?
Disclaimer does not work against the IRS
48
Holding of In re Estate of Phelps?
separated spouse living with another partner was not entitled to the spousal intestate share, but could take wrongful death monies provided for in a separate statute
49
What was the result in the Mahoney case?
Vermont statute had made no exception for a slayer. A constructive trust was imposed by the court in equity
50
What is the holding from Preston v. Chabot?
When a slayer is a tenant by the entirety with their victim, the interests are severed as a tenancy in common and the interests passed to the other heirs/devises in constructive trust
51
UPC 2-803
(b) treat slayer as having disclaimed
(c)(1) revoke dispositions under wills and trusts
(c)(2) sever interests w/ survivorship to making tenancy in common
(g) slayers are those who feloniously and intentionally kill
52
What may pass by succession?
* Interests in realty which do not terminate at death
* interests in personalty, historically including slaves
* some other forms of intellectual property, perhaps including publicity rights
*not minors, but can consider recommendations
*gametes are not property, but are controlled by decedent
53
Should the law recognize rights to control images of dead persons?
yes because they are assets, and the people will gain benefit during life knowing that just their celebrity will benefit their devisees
No because it impedes art
54
Does the law recognize postmortem publicity rights?
Common law: no
state law: some, with various time limits on the number of years
55
Shaw Family archives v. CMG Worldwide
That the will did not control after-acquired property because: (1) the laws of the states involved do not allow for devise of after acquired property (2) the court's odd reading of the residuary clause (3) the statutes creating these rights may not allow devisement anyway since that happens at death, not before or after
56
Can an estate hold rights that the decedent did not hold before death?
Yes; after-acquired property
57
Hecht v. Superior Court holding?
The contract and preference as to what to do with the zygotic material, giving to a partner, constituted a testamentary document that was enforceable
58
In re Estate of Kievernagel holding?
The contract and preference as to what to do with the gametic material, stating to destroy the gametes, constituted a testamentary document that was enforceable
59
Policy: how should we consider descent and devise for human material?
Should we allow it to be property?
Should we consider the contracts to be will substitutes?
Should we look for other intent, including wills, contracts, or other will substitutes?
60
What are the options for intestacy, from a policy writing perspective?
enters the commons?
Escheat?
A list of recipients? (this is what we do)
Hearings to determine intent?
61
Why should we not have hearings at every death, or require absurd formalities on wills?
inefficient use of resources, with increase in jobs being wasted human efforts
62
UPC 2-102
Spousal share in intestacy
*Spouse takes all If the decedent has no issue and no surviving parent, or if decedent leaves issue and they exact same issue as the spouse
*Spouse takes minus 1/4 of the amount above $300k if no issue but a surviving parent (the parent taking the remainder)
*Spouse takes minus 1/2 of the amount above $150k if the decedent had issue not of the spouse (all children each get a share of the rest)
*Spouse takes minus 1/2 of the amount above $225k if the spouse has issue not of the decedent (all children of decedent each get a share of the rest)
63
UPC 2-103(c)
blood issue share in intestacy
64
UPC 2-103(d)
parental share in intestacy, for any portion not taken by a spouse and children
*divide the parental portion equal to the number of surviving parents and deceased parents w/ issue
*one share goes to each surviving parents, and to the representatives of each deceased parent
*however, if all of the deceased parent's issue are descendants of a surviving parent, the share goes to the surviving parent
*however, if two or more deceased parents have the exact same surviving descendants, they are combined together as one deceased parent
65
UPC 2-103(e)-(f)
Shares of issue of parents in intestacy (e.g., siblings and nephews/nieces), if there is no spouse, no issue, and no parents
*pass by via representation (whichever version) to the issue of the parents
66
UPC 2-103(g)
grandparental share in intestacy, if no spouse or issue of parents (including issue of decedent)
*divide the grandparental portion equal to the number of surviving parents and deceased parents w/ issue
*one share goes to each surviving grandparents, and to the representatives of each deceased parent
*however, if all of the deceased grandparent's issue are descendants of a surviving grandparent, the share goes to the surviving parent
*however, if two or more deceased grandparents have the exact same surviving descendants, they are combined together as one deceased grandparent
67
UPC 2-103(h)-(i)
shares of issue of grandparents in intestacy, if no spouse, parents, descendants or parents, or grandparents
*pass by via representation (whichever version) to the issue of the grandparents
68
UPC 2-103(j)
shares to step-descendants in intestacy
If no surviving descendants of the decedent's grandparents survive, passes to stepchildren
69
UPC 2-105
shares to the state in intestacy
70
Why do we distribute to family at death?
* family are the natural objects, possibly because of evolutionary psychology's selfish genes
*may reduce unnecessary will writing
*may seem more fair
*may reduce theft
71
What does Stake believe the point of civilization is?
to overcome natural inclinations. just because an impulse is natural, does not make it good. Is is is; is is not ought
72
What are the community property states?
Mostly in the South/Southwest/West
*Louisiana, Texas, New Mexico, Arizona, Cali. Nevada, Idaho, Washington
*but also Wisconsin
73
What is community property?
It is the earnings from labor and community property, along with some other income, during the marriage. It is held jointly, even if only under one name
74
What happens to community property at death?
Surviving spouse gets half of community property automatically, and separate property is kept by surviving spouse. In intestacy, the spouse gets all or at least a share of the community property, and the decedent's separate property passes via intestacy
75
Traditional Spousal share in Intestacy in noncommunity property states
Common law: 1/3 of all lands seized during marriage (almost no one does this)
Traditional statutory rule: 1/3 or 1/2 of probate estate
76
Problem 3.01 reversed: O has a child, A, by mate X. When A is two years old, O and S marry. They have children B and C. When A is 11, O dies leaving an intestate estate of $426k. Who takes what?
Spouse takes $150k, plus half of the remainder ($138k)
Each child receives a third, or $46k
77
Why does the UPC give large shares to children of a decedent who is not the child of the decedent's spouse?
Tendency for that stepparent to not support
78
Problem 3.01: S has a child, A, by mate X. When A is two years old, O and S marry. They have children B and C. When A is 11, O dies leaving an intestate estate of $425k. Who takes what?
S: $225k + half the remainder, or $325
B and C: each $50k
A: nothing
79
Why does the UPC not give shares to a stepchild if the decedent has other children?
The UPC assumes the decedent would not support the stepchild
80
What are the methods of giving to children and descendants of deceased children?
Per stripes
Modified per stirpes
1969 UPC per capita w/ per capita representation
1990 UPC er capita at each generation
81
What is per stirpes?
divide by stock at each level, both living and dead. So each child, living and dead, gets a third, and their descendants go down in that manner taking fractions
82
What is modern or modified per stirpes?
Only begin per stirpes fractioning at the point where there is a surviving generation
83
What is per capita with per capita representation?
Skip dead generation, and distribute to the descendants of a predeceased descendant of the decedent their share
84
1990 UPC: what is per capita at each generation?
Skip each dead generation, combine dead member's shares at each generation, and pass equal shares of the combined pot to each member below
85
If there is no descendant and no parent survives the decedent, but a spouse and siblings of the decedent, who takes?
UPC: Spouse takes all
Some other states: siblings of the decedent share w/ spouse
86
Under the UPC want grandchildren to take, but parents only if there are no children, grandchildren, etc?
*declining marginal utility of wealth? (young people have less)
*younger people may have more uses for it? (investing in their futures)
*reduce income and estate taxes?
*biology/evolutionary psych?
87
What kind of system is the UPC for intestate succession?
parentelic
88
What is a degree-of-relationship system?
Count degrees of relationship, and break ties via the closest line. Thus, grandparents and grand children are equally close, but grandchildren are on the closer line
89
What is a laughing heir?
In systems that don't stop (the UPC stops at grandparents), those distant relatives who do not know the decedent but still inherit
90
Why are laughing heirs a problem?
Encourage lawsuits and delays in distributions from the number of potential claimants
91
Can stepchildren inherit?
generally, no. UPC allows it only if no relatives w/i grandparents survive
92
O, F, and M are born to different families in 2000. F and M have a child, A in 2020. In 2060, M marries O. In 2063, M dies, devising her estate to A. In 2095, O dies intestate, leaving $1mil and no relatives. Who takes?
Under current UPC, A takes. State law and older UPC, escheat
93
Holding of Hall v. Hall?
In West Virginia, incases where the parent has abandoned or abused a child and had parental rights revoked, the relationship has been revoked and the child is no longer the child of that parent. This holding has been revoked by statute
94
In cases of abuse by a parent, can the parent inherit from the child or the child from the parent?
Under the UPC, the parent cannot inherit by the child can
95
Who can an adopted child inherit from?
Generally, from their new family
96
Holding of Hall v. Vallandingham?
Children adopted by their adoptive and step-father cannot inherit from their biological parental uncle, as they are no longer legally a part of that family
97
What are the policy reasons to allow adoptive children to still inherit from biological relatives?
Biological family that know them may still want them to inherit
They still lost their biological parents
Incentivizes adoption
Avoiding changing rights retroactively
98
UPC 2-119(b)(2)
Adoption ends the relationship between the adoptee and their parents, unless the adoption is by a stepparent, was by a family member, or occurred after the death of the parent. In 2008, this is one way. In 2019, this can go both ways
99
Holding in In re Estate of Gallegos
Law similar in effect to the UPC provisions allows the adoptee to inherit from her biological father despite being adopted by her maternal grandparents
100
Problem 2.08: Genetic mother GM and genetic father GF have a child C. They sign a contract to allow C to be adopted by AF. C goes to live with AF, who dies w/o having legalized the adoption. Can C inherit?
Equitable or virtual adoption allows inheritance, at least via intestacy
101
Holding in O'Neal v. Wilkes?
There is no legal contract to adopt because her family did not have the authority to create it, despite that fact that no one did
102
What is Equitable adoption?
*allows an unadopted child to be an heir of the parent who failed to complete the adoption
*in some states, also allows an unadopted child to be a devisee in a class gift for those parents
*in some states, allows an unadopted child to be an heir the family of the parent who failed to complete
*does not allow that parent or their family to adopt from the child
103
Holding of DeHart v. DeHart?
equitable adoption requires an intent to adopt and actions consistent with that intent, and that equitable adoption does not require a contract to adopt
104
What is required for equitable adoption?
* in some jurisdictions, a contract to adopt
*in others, just the intent to adopt and actions consistent with that intent
105
UPC 2-118
there is a parent-child relationship between a child and a person who has been adjudicated to be the child's de facto parent
106
3.09a: S and B are siblings. N is their nephew by a deceased sister. B executes a will that gives everything to F. B secretly adopts F as a daughter, even though F is an adult. B dies. Can S challenge just B's will?
No, and even if they do, F inherits anyway as the daughter
107
3.09b: S and B are siblings. N is their nephew by a deceased sister. B executes a will that gives everything to F. B secretly adopts F as a daughter, even though F is an adult. B dies. S dies intestate, leaving $1mil and never knowing that F is B's adopted child. Does F inherit from S under the UPC?
Yes
108
What is the common law rule of children born out of wedlock?
They are filius nullius, the child of no one
109
What is the statutory rule for children born out of wedlock?
Mother is the mother. Father is depends on state and requires:
*acknowledgement
*subsequent marriage
*child proving paternity during life, or
*clear and convincing evidence after death
110
UPC 2-117
Marital status of the parents does not impact the parent-child relationship
111
Holding of Astrue v. Capato?
In Florida, twins conceived and born after death are not children
112
2008 UPC 2-120
Posthumous children would inherit
113
2019 UPC 2-120
Posthumous children might inherit, under the Uniform parentage act, which is less than clear.
114
UPC 2-104
Posthumous children need to be implanted w/i 36 months and born w/i 45 months
115
What are the options to keep Social Security solvent?
increase payroll tax
increase payroll tax and subject all wages to payroll tax
reduce benefits and subject all wages to payroll tax
Reduce benefits and increase payroll tax
Reduce benefits
116
Who takes in situations of nearly simultaneous deaths?
Common law: if the person survived at all, they take
UPC: need to survive for 5 days
117
M is the mother of S1. F is the father of S2. S1 and S2 are married and each have $1mil. S1 and S2 die in a tornado. Who takes?
Common Law: If S1 died first, S2 inherits from S1 and all goes to F.
If S2 died first, all goes to M.
Uniform simultaneous death act (original): if no evidence of who died first, pretend each died before the other
118
Holding of Janus v. Tarasewicz
No evidence that the wife did not die later, so therefore the husband's life insurance policy went to through the wife to her family
119
Simultaneous death rule in the new UPC and new USDA?
Must survive by 120 hours in order to inherit.
120
UPC 2-101
Negative wills are allowed and presume that someone disclaims if the will states an intent that someone take nothing
121
Negative wills: are they allowed?
Common law: no
UPC 2-101: yes
122
What is an advancement?
a gift during life that reduces the heir's intestate share at death
123
Who can be charged w/ an advancement?
UPC 2-109: heirs and next of kin can be charged if they inherit via intestate succession
Other states: Otherwise, may only be heirs apparent or descendants
124
Does the advancements doctrine apply in cases of partial intestacy?
Common law: no
UPC: yes
125
Can an inter vivos gift to a donee be an advancement to the donee's descendant?
UPC: yes
Common law: no
126
what is the rebuttable presumption regarding the decedent's intent as to whether a gift is or is not an advancement?
Common law and older statutes: assumption that it is an advancement
Most states and the UPC: presume it is not
127
UPC 2-109
*heirs and next of kin can have gifts to them count as advancements
*gifts are presumed to not be an advancement unless there is an intent in a writing
128
How does hotchpot work?
If an heir wants an inheritance, they include their advancement into the estate. That hotchpot estate is then divided up into equal shares. The amount needed to be given to the heir receiving an advance to reach their share of the whole estate is then given.
129
3.15: O dies intestate, leaving $50k and is survived by A, B, and C. With writings showing O's intent, A had been given 34k, and B 6k as advancements. If B chooses hotchpot, what does everyone get?
A receives nothing and keeps their 34k
B receives their half of 56, meaning 28, minus they 6 they have, so 22k
C receives 28k
130
3.16: O dies intestate, leaving $50k and is survived by A, B, and C. With writings showing O's intent, A had been given 34k, and B 6k as advancements. If B chooses avoids hotchpot, what should A do?
A should choose hotchpot. They receive half of 84, which is 42, minus the 34 for they have, for a grant of 8k.
C would receive the remaining 42k
131
3.18: O has two children, H1 and H2. Before three witnesses, O hands H1 a check for $1mil and says it is an advancement. O dies leaving an estate of $1mil. What is the result?
It is not an advancement because it was not in writing
132
Advancement policy: should the gift be presumed?
Deals with parents giving unequally during life. Does society have an interest in correcting biases, such as sexism or by birth order? Should large gifts be presumed to be advancements?
133
What are the possible policy presumptions for an advancement rule?
Common law: equalize at death from gifts during life
UPC: do not remedy prior bias
Nowhere law: go along with the intent/bias
134
What is the point of a will?
*avoids default rules
*successors worry less that a will was suppressed
*custody recommendations may help kids
*appointing a reliable executor and alternate
*change default rules, such as time of survivorship
*paying just debts
135
Formal Will requirements
*animus testandi: intent to both make a gift and that the gift be effective at death by this instrument
*capacity
*formalities including that it be signed, dated, and witnessed
136
How may a will mistake impact a will?
A mistake may negate intent
137
What is mistake in the execution?
A mistake about the nature of the document
138
D signs a document, intending it to be their will, that mistakenly includes a clause that D did not intend to include.
This is a partial mistake in the execution which negates that clause
139
D signs a document, intending it to be their will, that mistakenly excludes a clause D intended to include.
This is a partial mistake in the execution but the whole will is still admitted w/o the clause
140
How does coercion or duress impact a will?
Negates the intent that it the instrument be effective at making a gift at death
141
What is and how does undue influence impact a will?
It comes from domination which results in the loss of free agency. Negates the intent that the instrument or part of the instrument be effective at making a gift at death.
142
How is undue influence proven using the "loss of free agency" test?
Elements (requiring all) or factors (for balancing)
1) did the influencer have an opportunity?
2) did the influencer have a disposition or motive?
3) to what degree are the results unnatural compared to intestacy?
4) to what degree was the decedent susceptible to psychological domination?
If shown, there is a rebuttable presumption of undue influence
143
4.02: O is old and lonely. O executes a will leaving everything to O's law school. X comes along and befriends O for 10 years. O executes a will that leaves all to X. O gets hit by an asteroid and dies. Should X take?
Yes, as there was no undue influence
144
4.03 O is old and lonely. O executes a will leaving everything to O's law school. X comes along and befriends O for 10 years. One day X states that they will never visit again if O does not sign a new will that leaves everything to X. O signs. O gets hit by a comet and dies.
This amounts to undue influence
145
How is undue influence under the improper conduct approach?
factors (for balancing)
1) did the influencer have an opportunity?
2) did the influencer have a disposition or motive?
3) to what degree are the results unnatural compared to intestacy?
4) to what degree was the decedent susceptible to psychological domination?
5) was there unethical or improper conduct?
If shown, there is a rebuttable presumption of undue influence
146
What is the holding of Mueller v. Wells?
1) opportunity: there was a fiduciary or confidential relationship
2) causation/conduct: there was active participation in the procurement of the will
3) result: unnaturally large bequest
4) other considerations (the susceptibility to domination)
147
What are the 3 element alternative test for undue influence?
elements
1) confidential relationship
2) influencer received the bulk of the estate
and
3) the testator's intellect was weak
148
What is the two element undue influence test?
-confidential relationship w/
-suspicious circumstances
countered by:
-showing actions in good faith and that
-the decedent acted freely
149
Are punitive damages awarded against undue influencers?
Common law/traditional: no
NJ: yes, if wanton and willful disregard
150
Are devises to lawyers allowed?
Common law: yes
modern rule: raises a presumption of undue influence, which requires either that the testator get independent legal advice or that there be other clear and convincing evidence there was no undue influence
California rule: invalid, unless a reviewing lawyer certifies that there was no undue influence
Model Rules of Professional Conduct state that a lawyer shall not do this
151
What is fraud in the execution and how is it remedied?
This is a misrepresentation in the instrument by another party. Negates intent that it be a will. Could be a statement that it was a will when it was not, or that it was not a will when it was. Remedied by not admitting the will or by imposing a constructive trust
152
What is fraud in the inducement?
misrepresentation about something other than the document that impacts the intent, if the court finds the intent was conditional. The will may not admit to probate or impose a constructive trust
153
What are the elements of fraud in the inducement?
(1) misrepresentation: a promise the promisor did not intend to keep, or making false statements about another.
(2) intent to deceive and purpose to influence: not just a mistake, but rather they want a change made
(3) causing or inducing: difficult to prove
(4) a change in behavior
* executing or not executing
*revoking or not revoking
154
What was the holding in Puckett v. Krida?
That the nurses committed a fraud in the inducement by lying about the niece
155
McDaniel v. McDaniel
brother lied about his brother's control of the money to have him excluded
