Trusts and Estates

Question 1

Probate Property

Answer 1

Pass through will, or intestacy

Question 2

Non Probate Property:

Answer 2

Joint Tenancy, Contractual Provisions, Trusts, Retirement Plans

Question 3

Core Functions of Probate

Answer 3

Provides evidence for transfer of property, protects creditors, distributes decedent’s property

Question 4

Spouse’s Share under Intestacy

Answer 4

Spouse gets half, generally. UPC: Spouse takes entire estate if no other descendants, or if all descendants are also the spouse’s descendants

Question 5

English Per Stirpes

Answer 5

Property share division begins at the children of decedent, works its way down, even if the first generation is dead.

Question 6

Modern Per Stirpes

Answer 6

Same division as English, just “begins” at the line with first living issue.

Question 7

If Share of Descendants system is not specified?

Answer 7

Look to state intestacy law.

Question 8

Simultaneous Death?

Answer 8

Janus case: Common law approach party had to prove by a preponderance of the evidence that they survived the decedent by a millisecond. Now, UPC, a claimant must establish survivorship by 120 hours by clear and convincing evidence.

Question 9

Stepchildren?

Answer 9

UPC, stepchildren take if there are no surviving grandparents, or descendants of grandparents, or closely related kin.

Question 10

Adopted?

Answer 10

Adopted children are included as descendants of adoptive parents.

Question 11

Hall v. Valllandingham?

Answer 11

Adopted descendants cannot inherit from both estates, only from the adopting party.

Question 12

Minary?

Answer 12

Can’t adopt your wife to include her as part of trust for “my then surviving heirs”

Question 13

O’Neal:

Answer 13

Virtual adoption was not recognized, but dissent’s opinion for equity: Clearly established father/daughter relationship, had adoptive parent’s consent, has no money otherwise = Doctrine of Equitable adoption.

Question 14

Non-Marital Children:

Answer 14

Modern rule, all states permit inheritance from either parent.

Question 15

Posthumous Children:

Answer 15

Courts have established rebuttable presumption that if child is born up to 10 months after father’s death, it is his child

Question 16

Requirements for a Will

Answer 16

(1) Capacity (2) Two Witnesses (3) Signed

Question 17

Capacity:

Answer 17

1. Adult 2. Sound mind (Nature and extent of property, natural objects of his bounty, disposition they are making) 3. Testamentary Intent (Intent to dispose of property)

Question 18

Witnesses:

Answer 18

Needs two, “Presence” either Line of Sight (strict compliance) Groffman (simultaneous presence of both witnesses invalidated will) or Conscious Presence, Casdorph (Not properly executed because will was taken into a separate room to be signed)

Question 19

Signature

Answer 19

Full name, written at end of a document. Signature by mark, abbreviation, or nickname can be sufficient.

Question 20

Requirements of a Holographic Will

Answer 20

(1) Testamentary Intent
(2) Signature
(3) Handwritten

Question 21

Gonzalez Case:

Answer 21

Lack of witnesses may result in a will being enforced only as a holographic will instead.

Question 22

Kimmel:

Answer 22

father sent letter to sons, expressed testamentary intent “if anything happens”, signed “Father”, held that it was a valid holograph.

Question 23

Kuralt:

Answer 23

Signed letter ‘C’ detailing intent to transfer specific property to mistress, rather than his wife, letter is testamentary and enforced as a holographic codicil to his will.

Question 24

Defects in Execution/Harmless Error

Answer 24

Pavlinko, Snide, and Hall cases.

Question 25

Pavlinko:

Answer 25

H and W accidentally signed the wrong wills, court used strict compliance, invalid.

Question 26

Snide:

Answer 26

Same facts as Pavlinko, but court excused because it was a "genuine" mistake.

Question 27

Hall:

Answer 27

Clear and convincing evidence that decedent intended will to be his will, parents had made a joint will with changes, step-daughter objected to the drafted will, and lost.

Question 28

Slayer Rule:

Answer 28

Generally, slayer does not take, or might go the way of Mahoney case:

Question 29

Mahoney Case:

Answer 29

W convicted of manslaughter against H, no slayer statute, Court allowed W to hold title as a trustee for any descendants.

Question 30

Will Components:

Answer 30

(1) Integration (2) Republication by Codicil (3) Incorporation by Reference (4) Acts of Independent Significance

Question 31

Integration

Answer 31

All papers present at time of signing, Rigsby case not clear that T intended second page to be a part of the will, Staple your pages together!

Question 32

Republication by Codicil

Answer 32

Testamentary instrument that amends a prior will. Validly executed will is treated as re-executed as of the date of the codicil.

Question 33

Incorporation by Reference

Answer 33

Writing that was (1) in existence when the will was executed, but not present at the time of execution, may be absorbed into T's will, if (2) clearly identified and (3) have intent and sufficiently describe property in the writing

Question 34

Acts of Independent Significance

Answer 34

If T leaves child his car, and owns a Ford at the time of execution, but buys a BMW later, the kid still gets the BMW because T's intent was to purchase for his own use, not increase the size of his child's inheritance. Must be specific (safe deposit box example)

Question 35

Clark v. greenhalge

Answer 35

Incorporation by reference case, notebook references amending will from 1970-1980 validly amended recipient of painting.

Question 36

Nielson:

Answer 36

Physically crossing out lines of will, writing changes between the lines, dated and initialed the changes, will held as valid.

Question 37

Revocation:

Answer 37

(1) Subsequent writing executed with proper formalities (2) physical act destroying, burning the will.

Question 38

Modern Revocation Rule:

Answer 38

Estate of Stoker: Man revokes his original will, has his friend hand-write him a new one because he is dyslexic. New will stands.

Question 39

Inconsistency, Revocation:

Answer 39

Subsequent will that does not expressly revoke a prior will;, but makes a complete disposition of property is taken as presumptively revoking the prior will.

Question 40

DRR

Answer 40

1. Jurisdictional, 2. If court determines testator would prefer the old will, to intestacy. New will is never invoked, old will, or intestacy goes.

Question 41

Revival:

Answer 41

1. English Rule: Will speaks at the time of death, so you cannot revoke the first will 2. Modern: If testator sufficiently intended to revoke, will be revived with sufficient writing 3. No revival, but can re-execute.

Question 42

Insane Delusion:

Answer 42

False conception of reality that undermines the validity of the will (Cunningham test) 1. Testator had an insane delusion 2. The will, or a part of it was the product of the insane delusion

Question 43

Wright:

Answer 43

Gave house to friend, evidence of wright's odd behaviors had no bearing on the will, or sufficient to prove his insanity.

Question 44

Strittmater:

Answer 44

National Women's party case, court found extreme misandry, = insane delusion.

Question 45

Breeden:

Answer 45

Hit and run, then suicide, extreme anxiety at the time unrelated to the dispositions in the will, no insane delusion.

Question 46

Undue Influence:

Answer 46

(1) T is susceptible to influence | (2) Influencer causes undue influence.

Question 47

Undue influence, procedure?

Answer 47

Proponent shows validity of will, contesting party must prove undue influence. If confidential relationship, there is a presumption of undue relationship unless alleged wrongdoer shows otherwise. *Circumstantial evidence allowed!*

Question 48

Fraud/Duress

Answer 48

1. Wrongdoer knowingly lies 2. Induces someone to make a will by undue influence 3. Gets someone to sign a document they don't know is their will 4. Duress: Threat of force/violence.

Question 49

Patent Ambiguity

Answer 49

Evident on the face of the will, extrinsic evidence is allowed.

Question 50

Latent Ambiguity

Answer 50

Becomes apparent only when the terms of the will are applied to facts, extrinsic evidence allowed to resolve.

Question 51

Reforming a mistaken term in a will

Answer 51

While still a minority position, reformation of a will to correct a mistake, proved by clear and convincing evidence, is more common. (Court has an eraser, not a pen, can ignore mistakes, but not add)