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ESTATES & TRUSTS
INTRODUCTION TO ESTATE PLANNING
The Power to Transmit Property at Death
Probate – alternatives to dispose of money/wealth i.e by gift, will, trust, intestacy, deed, insurance, spending Testate – passing property at death by will Intestate – w/o a will; a legislative will by way of intestacy statutes = Michigan Statute of Descent & Distribution
Wills are necessary even if you have no property because:
you may have an unknown inheritance guardianship
Shriner’s Hospital v. Zrillac:
Mortmain statute – allows family members to challenge charitable gifts i.e. priest telling someone on their deathbed that if they want to go to heaven, they should give “x.” RULE: the right to devise property is given under the Constitution, but a state can regulate this right, provided the regulations are reasonable. the statute in this case was unreasonable as it affects too many people who don’t fit into the “shammed or coerced” category. The statute was both too broad & too narrow. no longer in effect in Michigan
Shapira v. Union National Bank:
RULE: the restriction that testator put in his will relating to who his son could marry was valid in that it only provided that the girl must be Jewish in order to take = partial restraint on marriage. The default provision to Israel showed that his reason was to further the religion. Only a restriction on marriage, not a restriction of right to marry. There is no right to receive property from your parents! Public policy: one cannot always restrict the class of who one is to marry. This case distinguished from Maddox because in said case, it greatly limited the # of men to choose from. Gift over clause: “if my son fails, I give to Israel.” He was not trying to control with the dead hand, but wanted to preserve Jewish faith.
known as an in terrorum clause: a gift conditioned upon the act of another controlled by testator. These are generally disfavored by the courts because don’t want the dead hand ruling from the grave. Marriages No conditions allowed for 1st marriages, but can regulate 2nd marriage. i.e. sons will receive their share of the estate provided they don’t remarry if they divorce will be seen as reasonable. Cannot single out a person or further a personal vendetta; even if person not named but described it is not valid. No constitutional right to remain single – probably a valid restriction
Personal Habits
Generally as long as the personal habits are for the personal benefit of the individual, it is valid.
Education
Must be reasonable & reasonable to be potentially obtained in order to be valid.
Other things discouraged: those that disrupt or separate family.
Transfer of the Decedent’s Estate
Advantages of the Probate Process
An orderly distribution overseen by judge Quick distribution: average is (1) year; must be done in (3) years Protects creditors Provides an arbitration function if family members are fighting
Disadvantages of the Probate Process
Length of time – can be a difficult process Costs can be greater IRS tax questions
Terms
(Today these are both known as the personal representative)
Adminstrator DBA (de bonis non); “of goods not administered”: appointment made if, during the distribution, the adminstrator dies or does something improper. Now known as a successor personal representative. Adminstrator CTA (cum testamento annexo); “with will annexed”: appointment where there is a will, but it is not the person in the will because that person is dead, disabled, or not a candidate. Temporary Personal Representative: if one is contesting the appointment made (not signing consent forms) or if appointed PR cannot be found. Used while waiting for a hearing date. Fiduciary: either a PR, guardian, conservator, or trustee Devise: a gift in will of real property. Devise to a devisee. Bequest: a gift in will of personal property. Bequeath to a legatee. Beneficiary: someone with a present or future interest in property Heir: a person that receives an intestate estate; has standing to challenge a will. i.e spouse & children Next of Kin: all relatives that are descendants of the grandparents & could potentially take under intestacy.
(All heirs are next of kin, but not all next of kin are heirs!)
Consanguinity: related by blood; by blood descendants Descendants or Issue: those that come after you. i.e children, g-childre, etc.
Examples of Probate & Non-Probate property: problem 1 p.49
Furniture & personal assets: not probated if jointly owned Savings account in testator’s name: must be probated & need a court order to release $ (especially if >$100). Joint checking account: not probated, but good idea to open new account Pension plan naming spouse as beneficiary: if beneficiary survives, probate not necessary; if B dies first, the goes to estate Government bonds payable to either testator or spouse: “and” “or” survivor gets automatically Cash in shoebox: presumption that held jointly. If no spouse, but children, it depends! RULE: The further removed from heirship & the larger the amount of $, you should list it! Life insurance payable to spouse: same as pension plan Ford automobile: if spouse’s name on it, then she takes. House: if jointly owned, the no probate.
Universal Succession: heirs can decide to “step into the shoes” of the deceased w/o probate. They must agree to take decedent’s assets & divide them among themselves.
Adult competent heirs are responsible for debts. Only available in Louisiana – UPC §312 Michigan has the Dodge Act: enter into a family agreement to distribute estate different from the will. This recognizes that a dispute can be dragged out forever & allows a compromise to a will contest.
Parties should consider this if:
Client has (4) children, but only wants estate to g to (3); if other (3) think it is unfair, they can agree to divide (4) ways. Client has (4) children and wants estate divided equally. (1) child is retarded and the (3) competent children decide #4 needs more.
Limitations on Inheritance
Taxes – if estate is above estate tax level, it will be taxed to the fullest Rule Against Perpetuities – decedent cannot control the estate forever
The law gives deference to the testator’s wishes as long as they are reasonable.
Examples
Must burn $100: If decedent is wealthy, the courts will probably allow. (90%) Must burn a dilapidated house in the country: Less likely to allow, however, still possible. (60%) Burn the Picasso painting: Probably won’t be granted due to loss of society (10-20%) Sandra West – left $2.8 M as long as she was buried in a certain way: upheld Destruction of Pets: court may uphold depending on age & condition of pet. Animal rights groups cannot challenge – no standing
7. Ogle v. Fuiten:
In order for one spouse to inherit, must live (30) days longer than the other. The 2nd spouse only lived (15) days longer. P sued for improper drafting RULE: a trend has emerged allowing a 3PB to get compensation from lawyers if they clearly goof in drafting & intended beneficiary does not receive all they should have
The key for a 3PB suit is that there is a signed writing that includes them as part of their plan Michigan: no signature = no duty!
AN ESTATE PLAN BY DEFAULT (INTESTACY)
The Basic Scheme
EVENT UPC EPIC
(decedent dies w:)
sp, no issue, no parents sp: 100% sp: 100%
sp, issue sp: 100% sp: 150k + ½ remainder
issue: ½ rem
sp, issue, surv. spouse sp: 150k + ½ rem sp: 150k + ½ rem
has other issue issue: ½ rem issue: ½ rem
sp, issue &/or deceased sp: 100k + ½ rem sp: 150k + ½ rem
has other issue issue: ½ rem issue: ½ rem
sp, no issue, parents sp: 200k + ¾ rem sp: 150k + ¾ rem
parents: ¼ rem parents: ¼ rem
UPC 2-103/EPIC 2103: “no spouse, no issue”
if no spouse, no parents, no issue, then it goes to brothers & sisters:
(M) & (D)
(A) B C (D)
1/3 1/3
E F
1/6 1/6
if no spouse, no issue, no parents, no siblings, then it goes to g-parents & each side takes 50%:
Maternal G&G Paternal G&G
1. g-mother (50%) g-mother/g-father (50%)
2. uncle-aunt1-aunt2 (50%) g-mother/g-father (50%)
3. if (uncle)-aunt1-aunt2, then g-mother/g-father (50%)
u’s descendent’s get 0.
4. if only cousins, then they g-mother/g-father (50%)
share 50%
if no heirs on one side, then 100% to other side if no heirs at all, it escheats to the State UPC & EPIC will not go beyond issue of g-parents = “laughing heirs”
2. UPC 2-107/EPIC 2107
3. Surviving Spouse
Test of Common Law marriage
1. clear & convincing evidence of a present agreement to live as husband & wife
2. both must be free to marry
3. must be openly cohabitating = “notariety”
4. must begin before 1957 (year when CL marriage abolished)
the 7-year rule is a myth, but a # a court found reasonable; less could be OK common law marriage in another State is given full faith & credit in Michigan
4. UPC 2-802/EPIC 2801 defines what a “surviving spouse” is not
EPIC: if in a bigamous relationship, you are not a surviving spouse. If for one year one is absent, wilfully neglectful, etc., they are not a surviving spouse.
5. UPC 2-804/EPIC 2806, 2807, 2808:
a divorce decree revokes entirely any revocable disposition of appointment of property in a governing instrument i.e a will, insurance beneficiary, consent for trustee or executor, etc. an ex spouse will not get estate under an old will made when married
6. Codicil: an amendment to a will
7. Example – Estate of Tommy Williams 164 Mich.App. 601 (1987)
1945 Daisy (Alabama)
1951 Rosebud
Estelle (died in 1970)
1974 Betty
Tommy died in 1984 leaving an apartment building as his only basic asset; Rosebud is claiming the estate.
Rosebud, although she had a claim, deserted Tommy & came back only to claim his asset.
Betty was given the decision as she had married Tommy in good faith & put $ into the apartment.
Therefore, ½ to Betty & ½ to Tina (Rosebud/Tommy’s child)
8. Simultaneous Death
Michigan Uniform Simultaneous Death Act (USDA):
if no sufficient credible evidence that persons died other than simultaneously, the property of each person is disposed of as though they survived; jointly held assets are divided 50/50; each spouse’s own assets go into the estate. Plane crash example: if crash contains no evidence that someone survived another by even a fraction of a second, then all are deemed to have died simultaneously.
9. Janus v. Trasewicz:
If the primary beneficiary dies first, $ goes back into the principal’s estate Theresa had a spontaneous pulse & blood pressure after Stanley had died. Stanley’s mom argued that the machines kept her living, that they died simultaneously & the mother should go to estate (her). Living wills were created due to technology of medical machinery. One is declared legally dead when:
“irreversible” cessation of circulatory & respiratory function – difficult w/life support; or a brain death standard – i.e “flatline”
10. Problems p.80
Husband & wife drown in a boat accident: wife drowned after violent struggle as she was a superior swimmer, but husband submitted peacefully. No evidence as to who died 1st, therefore, death was simultaneous. Husband & wife killed in a plane crash. Husband’s skull is crushed & there is no carbon monoxide in his blood. Forensics will allow a possibility to determine that Husband died 1st as the wife has some indication of respiration.
11. 120 Hour Rule
Testate Estates: UPC 2-702/EPIC 2702
Intestate Estates: UPC 2-104/EPIC 2104
In order to be considered a survivor, must survive by 120 hours (5days) If dead w/in 120 hours, treated as predeceased. i.e for tax purposes, the estate would be taxed 2x cannot begin probate until this 120 hour time period expires. Can provide a will for simultaneous death. i.e Husband:“In the event of a simultaneous death, it will be presumed that my wife survived.” & Wife:“In the event of a simultaneous death, it will presumed that I survive.”
Problem examples:
FACTS: Mom has a Son & a Daughter (w/Husband). Mom owns 150k in her name. Daughter owns 100 k in her name
what if M dies 4/1 & D dies 4/4?
*USDA in Michigan only applies to non-probate estates
M: 150 k goes to son
D: 100k goes to Husband. Don’t use 120 hr rule as M died first.
what if M dies 4/1 & D dies 4/7?
Blackacre goes to D then to H.
M: 75k to son, 75k to D then to Husband
D: 100k to husband
what if D dies 4/1 & M dies 4/4?
Blackacre to M then S
M: 150k to son
D: 100k to H
what if M dies 4/7 & D dies 4/1?
Blackacre to M then S
M: 150k to son
D: 1st 60k to H + ½ rem; son gets ½ rem
12. Methods of Distribution (see more examples in notes)
Types:
per stirpes per capita Waggoner – UPC/EPIC
General Rule: if deceased has no issue, drop that share out! First divide into # of roots. All answers should add up to 1!
Per stirpes – divide first at child level
Example: 3 roots
(T)
(A) (B) C
1/3
D E F
1/3 1/6 1/6
Example: 2 roots
(T)
(A) (B) (C)
D E F
½ ¼ ¼
Per capita – if all children deceased, divide equally at the next level (g-children).
Theory of per capita – if Grandma would have known that the kids would die, she would have treated the grandkids equally Example:
(T)
(A) (B) (C)
(D) E F
1/3 1/3
G H
1/6 1/6
Waggoner – equalize at every level. EPIC! When dropping to the next level, the division of the assets is only b/w the issue with dead parents. It is assumed that the children with live parents will eventually get a share.
Example:
(T)
(A) (B) C
1/3
D E F
2/9 2/9 2/9
Example:
(T)
(A) (B) (C)
D E F
1/3 1/3 1/3
Parentellic System – used by Louisiana & Europe
Table of Consanguinity:
Grandparents 2
Parents 1 Uncles/Aunts 3
Person deceased Bros/Sisters 2 1st Cousins 4
Children 1 Nephews/Nieces 3 1st Cousins 5
once rem’d
Grandchildren 2 Grand Neph/Ncs 4 1st Cousins 6
twice rem’d
Great G-children 3 Great Grand 5 1st Cousins 7
Nephs/Ncs thrice rem’d
Michigan only use the 1st (3) parentella, then escheats to the State. # = the amount of steps removed from the deceased. Each # shares equally with those of the same #.
Transfers to Children
Posthumous children: a child born after the death of its father
How do you determine if child is the child of father?
Common Law: child born w/in 280 days of death of father is presumed to be child of that father (a rebuttable presumption) Uniform Parentage Act: a child born w/in 300 days of death of father is presumed to be child of that father (a rebuttable presumption) Reasonable Time (EPIC/UPC/MICH): opens door for a lot of rebuttable presumptions
Davis v. Davis:
Divorce action that occurred after egg removal, but before implantation. ISSUE: custody of the embryos – Mom wanted right to have kids, Dad didn;t want to be made to have kids. RULE: the court would only give preference to woman only if she could prove it was her only chance to conceive. However, it was not & she lost.
Adopted children
Hall v. Vallandingham:
RULE: adopted children cannot inherit from their natural uncle. Once children are adopted, they are cut off from their natural family rights. Adopted children are not given more inheritance rights than natural children – adopted children are considered natural children of their adoptive parents! Michigan follows this rule (MCL), however, EPIC 2114 is a combo of MCL and Hall. UPC 2-114(b) does not follow Hall.
EPIC 2114(2) & UPC 2-114(b) will allow inheritance through adoptive & natural parents EPIC follows the Texas rule that if adoption occurs due to death of a parent, children can still inherit. EPIC 2114(4) disallows inheritance by deadbeat parents.
If parents divorce & children are adopted by stepfather, then children are cut off from natural father’s inheritance. If a parent doesn’t visit or support a child for 2 years, the law will cut off his parental rights. Adoption of an adult may not affect family’s rights.
O’Neal v. Wilkes:
Child was passed to several relatives before being given to the Cooks by her aunt. The Cooks never statutorily adopted her, but there was an obvious father-daughter relationship. The aunt was not legal custodian & could not contract for the adoption. MAJORITY: not a virtual adoption because no one had the authority to contract for the adoption. DISSENT: Equitable Adoption
Used where someone treats a child like his own Estops other family members from denying the relationship. The child is the innocent party & it is not her fault nobody had the foresight to adopt her. Only flows one way as it can only benefit the child. i.e. “adoptive parents” cannot bring wrongful death action. Recognized in Michigan
Estate of Riggs: (note 1 p.105)
Equitable adoption is a one way street to benefit only the child. It prevents other relatives of equitable parent from denying adoption ever took place. Equitable adoption permits an equitably adopted child to inherit from the foster parents. On the other hand, foster parents (and their relatives) cannot inherit from the child.
Non-marital Children
At common law, child born out of wedlock was considered nobody’s child and, therefore, could not inherit. England: In 1926, allowed child to inherit from mother; in 1969, gave the same inheritance as the marital children. United States: all J’s permit inheritance from mother, however, inheritance from father varies.
Uniform Parentage Act provides an assumption of paternity if:
while minor, raised by father as his own child acknowledges paternity in writing with appropriate court father marries mother
In order to establish paternity, must do one of the following: (EPIC 2114(1)(c))
father signs written acknowledgment filed in probate court where child lives father & mother jointly request issuance of birth certificate legitimizing birth father & child mutually acknowledge the parent-child relationship before the child is 18 & it continues until one dies. (most common) where there is an order of affiliation entered by the court (usually after blood testing)
Children can’t choose biological father of extra marital affair if mom was married at conception. Therefore, mom’s husband, not biological father, is the father.
e. Hecht v. Superior Court:
Decedent donor’s administrator filed a petition on behalf of decedent’s children to have sperm vials destroyed. RULE: the court said that the vials should be treated as human tissue & as one of decedent’s assets to be gifted in his will. The individual producing them should have priority as to what to do with them & decedent had released them to the defendant. The court found no public policy against single women becoming artificially inseminated.
4. Advancements
Common Law – if a parent gave a gift to one child, it would be equalized upon parent’s death. The only way around this was to sign an acknowledgement creating an absolute gift. UPC 2-109/EPIC 2109: the presumption changed so lifetime gifts are not automatically deducted from the share unless there is a writing.
must be signed by donor or donee contemporaneously with the giving of the gift. Hotchpot
Example 1: Decedent leaves a 50 k estae, no spouse & 3 children. A received a 10k advancement. To calculate, add 10k to 50k estate = 60k total, then divide by # of children. Therefore A=10 k (already rec’d 10k), B=20k, C=20k
Example 2: A received a 34k advancement. Now, A is left out and B & C receive ½ of the estate each. Therefore, A=34k, B=25k, C=25k. Things don’t always end up equal!
A does not pay back the estate as there is a public policy against possible placement of undue burden on the party with more. Example 3: Decedent now leaves a 90k estate. A received a 30k advancement. D, A’s child, received a 15 k advancement. Do not add D’s advancement unless A is dead. Therefore, A=10k, B=40k, C=40k. Example 4: A is now dead and also has child, E. Now add D’s advancement. Therefore, A=0, B=35 k, C=35k, D=2.5k, E=17.5k (15+90=105k divided by 3=35k)
5. Transfer of Expectancy
a. Expectancy: what an heir expects to receive from a decedent. One cannot bank or
count on this – it is a future interest!
An expectancy cannot be transferred – actually it can, but who would want it??? A transfer must be in writing & must be for fair consideration. A child can release expectancy to its own parents or transfer to 3rd parties unless an only child.
6. Managing a Minor’s Property
As of 1979, the court can appoint both a Guardian & Conservator for minor’s estate
guardian: decisions regarding the physical person conservator: decisions regarding assets
the same person can be both guardian & conservator. Generally, the conservator will be a parent, but can be a non-family member. If existing parent is, i.e., a drug addict, another family member can petition the court for guardianship. If a child receives >5k settlement in any year, a conservator must be appointed.
3. full guardianship: becomes a parent in the eyes of the law
limited guardianship: parent files petition that someone else be appointed guardianship. i.e a single parent in Army boot camp. This allows for education & job training. It is the goal of the court to return the child to the parent ASAP. placement plan: if a parent fails to comply with its plan that was turned into the court, the court can terminate rights.
Conservatorship
Once someone qualifies as Conservator, the court must decide the type of bond to be filed:
surety bond – in amount of minor’s assets nominal (personal) bond – usually 1k, although Oakland Co. is increasing to 2.5k
Restrictions on Handling a Minor’s Money:
Parents have a legal obligation to provide food, shelter, clothing, education & medical care. Too many parents treat their child’s $ as their own. The court will allow reimbursement for a used car (if necessary) or car insurance; others include tuition for private school. Investments are restricted to banking institutions that are FDIC insured: the court is very conservative with minor’s assets – more interested in security than return.
7. Uniform Gifts to Minors Act (UGMA)
A gift can be made to a minor that will not require a conservator i.e a grandparent can buy a bond, etc. A custodian will be appointed & he has more freedom in that there is no reporting to the court required.
8. Guardian Ad litem
This is an attorney who acts as a courts advisor or investigator. This is not a continuing app’t like that of conservator. Stands in the shoes of the minor & has the sole focus neutral position of deciding what is best for the minor. Largest area for this type of app’t is when a minor is attempting to collect on a P.I. claim. Under MCR 2.420, the settlement must be approved by the court. Requirements:
once lawsuit is filed, settlement must be taken to judge that was assigned the case. if no lawsuit filed, but claim made, then go to probate court.
whether minor is entitled to receive >5k in one year, then must have conservator to have settlement approved & check paid out. If an attorney negotiates a settlement of 7.5k, but net to minor is <5k no conservator is needed. if settlement is >5k:
file petition for approval of conservator file for approval of settlement
9. Structured Settlements
Because a conservator must file an annual accounting with the probate court until minor reaches majority, structured settlements in the form of an annuity are a good option. The annuity grows until age 18 when it will be paid monthly, yearly, etc. If the $ is placed in an account gaining interest, the interest is taxable & a return must be filed.
Example: 20 k settlement paid into an annuity. Therefore, not actually settling for 20 k, but for the right to receive future payments. No reports have to be done by conservator. No taxes paid because payments for P.I. & not income.
Age 18=15k, Age 19=16k, Age 20=17k, Age 21=18k Total=66k!
Advantage: Avoiding annual accounts Disadvantage: the future is unpredictable – sureties can go out of business & settlement is gone. If minor dies early, payments are still made on scheduled dates to the estate of beneficiary.
Bars to Succession
In re Estate of Mahoney:
Wife convicted of manslaughtering husband & claimed his estate. 3 methods of thought:
should not take away $ treat as predeceased & don’t award $ (a legal fiction) legal title to killer, but does not enjoy profit of crime = constructive trust that prevents unjust enrichment. The constructive trustee muss pass to heirs.
The court chose #3. UPC 2-803/EPIC 2803 follow #2:
If “feloniously & intentionally” kill another, then will be treated as if predeceased the deceased. Therefore, can’t elect against the will, pay on death K’s are revoked, no statutory share, sever joint interests whether testate or intestate (converted to tenancy in common). Michigan includes aiding & abetting. EPIC says the killer disclaimed its interest.
Disclaimers
A renunciation of a gift; a document preventing $ from passing to the donee, rather the $ rolls right past the donee & treats him as if he is predeceased. qualified disclaimer: donee refusing to accept gift; an irrevocable & unqualified refusal to accept an interest in property.
requirements:
must be in writing received by transferor or donor or his estate w/in 9 months of date of transfer or date of death or attaining age 21 donee must not receive any benefit or gift donee cannot control where property passes. Michigan – Uniform Disclaimer Act: can disclaim a portion of the inheritance Cannot disclaim present interest and claim future interest
Potential problem with disclaimer:
(T)
(A) (B) C 1/3
D E F G H I J
1/6 1/6 1/3
under per capita, if C disclaims, will cause the roots to drop, allowing his kids to get 1/7x4 = more than half!
WILLS: CAPACITY AND CONTESTS
Mental Capacity
Formalities of creating a will: EPIC 2501
18 years of age of sound mind
Minimum test for mental capacity:
testator must know nature/extent of his property must know persons who would be natural objects of testator’s bounty – i.e who are the heirs? disposition testator wishes to make of his property at time of death must know how above 3 requirements form an orderly plan for disposition of wealth – i.e understanding that he is signing a will
All that matters is that testator have mental capacity on the day & time that the will is signed. Even if the testator had a guardian or conservator appointed, they can still sign a will – does not create a presumption of unsound mind. Legally incapacitated: a person unable to make an informed decision regarding your person or your assets
Questions to ask the client:
what property do you own? who are the natural heirs? what do you want to give to whom? do you understand that you are going to be signing a will?
In re Strittmater:
She had a documented illness that manifested itself in her hatred for men. However, the court went through the back door to invalidate the will due to the time. Today, just because the testator may have a mental illness will not invalidate the will. The test for mental capacity must still be performed and will depend on the if the testator is being treated or not.
Insane Delusion
Definition: a delusion is insane even if there is a factual basis for it if a rational person in testator’s situation could not have drawn the conclusion by testator; an impairment of testamentary capacity.
Lack of testamentary capacity: lack of capacity to understand any of the 4 requirements Difference b/w delusion & mistake is that a mistake is susceptible to correction where a delusion is not. A mistake will not invalidate a will where an insane delusion will invalidate only the part of the will that is affected by the delusion. Insane delusion is a legal concept, not a psychiatric concept.
In re Honigman:
Man insisted that his wife was having an affair as he felt his wife was exuding bizarre behavior. ISSUE: whether he was suffering from a delusion at the time he made his will. RULE: The court must look at whether his belief of the affair was “reasonable.” If they weren’t, then they go to his insane delusions. Would a rational person based on these facts believe that she was having an affair?
this is the majority view. Michigan (the minority view) says that if there is any factual basis for delusion at all, it is not a delusion. Ante-mortem probate (Michigan): figure out one’s mental capacity while they are still alive. Advantage: testator is there & able to answer questions Disadvantages:
Ties up the legal system Could cause family disagreement Family would become aware of what was contained in the will
Undue Influence: coercion into doing what you don’t want to do.
Test for undue influence:
Does the influencer have the disposition & opportunity to influence? i.e Is there a confidential relationship?
Is testator susceptible of undue influence? i.e physical/mental condition, in hospital, low IQ, drugged, etc. Is there an unusual disposition in the will?
If all 3 questions are answered affirmatively, then there is a presumption of indue influence. The BOP shifts to influencer to prove by a preponderance of the evidence that they did not influence. If influencer is an attorney, then by clear & convincing.
Lipper v. Weslow:
A will prepared by testator’s son that cut out her grandchildren Test:
Confidential relationship? Yes – A/C privilege & son. Also, son lived next door & had a key. Susceptible of undue influence? She died 22 days after signing the will, therefore, she may have been sicker than originally thought. Unusual disposition? Yes – kids that she didn’t even like ended up getting ½ .
No contest clause (in terrorem):
Provide that a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will. Generally, not upheld as they are disfavored by the courts
3. Michigan has somewhat different test for undue influence:
susceptible/mentally weak testator (most important!) activity can be beneficiary in procuring will (important!) opportunity of influence to influence testator (confidential relationship)
family is not in itself confidential; involvement in immoral activity is not enough does will benefit influencer? suspicious circumstances – the “catch all” threats of violence to testator, threats of civil/criminal prosecution, threats to leave testator when he is ill, if beneficiary keeps will in her possession
4. Bequests to Attorneys
Most J’s find automatic presumption of undue influence if there is a bequest to an attorney, even if attorney did not draft the will. The court, however, will be reasonable. An attorney shall not suggest that a gift be made. If client insists, the attorney has the duty to advise of outside, disinterested counsel. Family members:
never charge a family member for drafting a will never leave more than intestate share for yourself if doing for family member as intestacy decides “normal” disposition must send family member to outside counsel if they want to cut out brother/sister it should never be your own idea to do a will for a family member in-laws are considered blood relatives
5. In re Will of Moses:
The court went through the tests of undue influence. Technically a wrong decision & very result-oriented
6. In re Kaufmann’s Will:
The court went through the tests of undue influence Seems like a case where the court’s morals were offended (wealthy, gay man) more than one of undue influence.
7. Seward Johnson’s Estate:
Major mistake for Nina was not to tell Seward that some of his children were going to contest the will – A/C confidentiality. Never agree to withhold information from client because there is a duty to the client! Things top help defend undue influence:
have more witnesses ask more questions have many meetings & make notes as to capacity meet with client alone
if client comes with same kid every time, this is good evidence of undue influence, especially if that kid is to receive more than others videotape: but if client is very ill, don’t want to videotape have client write in his own handwriting document your file
Fraud
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