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|Wills and Trusts Fall 2001|
WILLS, ESTATES, AND TRUSTS OUTLINE
Alternative Approaches to Disposing Property
Pass Property through a will
bequeaths personal property to legatees
Devise: 1-201(10): Testamentary disposition of real and
Who can you disinherit?
Why write a will?
Advantages of writing a will
New Michigan Probate Code: EPIC
Hodel v. Irving: Right to pass property at time of death is a constitutionally protected right
3 prong test to “taking” cases
Shapira v. Union National Bank: What a Testator wants done with his estate is not a decision for the judge. Duty of Court is to honor testator’s intention within the limitations of the law and public policy.
IE: If my son divorces and marries a 2nd time, then no money. Upheld
IE: There’s no fundamental right to stay single. Public policy favors marriage
IE: Kid gets money only if he doesn’t marry X. Not upheld. Cannot restrict based on a particular person
IE: Restrictions on personal habits. Upheld bcz of public policy
IE: Kid gets money only if he graduates from law school. Upheld if the child is capable of graduating from law school. ***Cts look at the reasonableness of the condition***
IE: Kid gets $ only if he never speaks to Uncle Joe. Not upheld. Can’t have a restriction that interferes with a family relationship and can’t encourage divorce.
Transfer of Decedent’s Estate
● Non Probate Property
Administration of Probate Estate
The first step is to appoint a personal rep (1-201)(36)) to handle D’s affairs
Probate: System of carrying out the disposition of property after death
Streamline: Can do it in about 5 months, average is 1 year. IRS will Q it if more than 2 yrs
Cost has been curtailed: Legal fees: Hourly rate with a detailed justification of time
Fiduciary: 1-201(16): Personal rep, guardian, conservator, trustee
Devise: Gift of real or personal property given to devisee
Bequest: Given to legatee during D’s life
Beneficiary: 1-201(3): Benefits under will, trust, ins. Policy, etc
Distributee: 2-201(13): One who received property of D other than a creditor or purchaser
Executor: D dies and leaves a will naming the personal rep. Executor is a male personal rep
Executrix: Female personal rep
Administrator: Personal rep is not named in the will. This is the male admin.
Administrator CTA: “Cum Testamento Annexo”: “with will annexed”
Administrator DBN: Administrator gets appointed to finish off what the original admin started
IE: where executor or orig admin started probate, but can’t finish it for some reason
Administratrix: Female administrator
Interested Person: 1-201(24): Includes heirs, devisees, children, spouse, creditors, benes, and any other person having a property right in or claim against a trust estate or D’s estate, a ward’s estate, or protected person. Child of D not named in will is also an interested person, but if a child is cut out, then he’s not an interested person! (too bad)
TEST: Who’s an interested person depends on which petition is getting filed.
IE: When filing a petition for confirmation of sale of D’s real estate, a creditor is an interested person. Usually, we look at unpaid creditors: they must receive notice of sale.
Heir: 1-201(2): Closest people to D. Spouse, child, parents, and so on.
1-201(2): The intestacy statute that defines persons entitled to succession of D’s property
Next of Kin: Everyone is D’s next of kin
NOTE: All heirs are next of kin and not all next of kin are heirs. An ex-spouse is neither
Consanguinity: Relationship by blood affinity
Issue: One’s children, grand children, great grand children, etc. (descendents) They descend from D
The Probate Process (not on exam but will need this for writing assignment)
IE: I live in Wayne County, so my estate will go through Wayne County Probate Ct
You must open a domiciliary estate and then send notice to the ancillary jurisdiction
Not on exam, these are just dfrn types of estates that you can open
NOTE: In general, do it as unsupervised as possible
IE: If there’s a gift to charity or $’s going into a Trust
BOND: Says “if personal rep steals the money and runs, the surety will replace the $” (like an insurance company) NOTE that most companies will not give a bond to someone who is not represented by an atty
Step 2: Bring a Notice of Publication
Step 3: Start Gathering and Preparing the Assets and Inventory
What do you put on the Inventory “Form” and what Value do you put on the property?
Inventory: Will be sent out to all interested persons with a cover letter
Same inventory forms is used for Conservatorship and Decedent’s Estate
Value: Is on the D’s date of death for D’s estate, even if there’s no will and D has been dead for 15 years
Value: Is on the date you were appointed conservator for a Conservatorship
NOTE: List only assets that are D’s name alone and don’t list jointly held property!!!
NOTE: If there’s a shoebox full of $25,000: If wife finds it, she keeps it regardless of amount bcz if married, there’s a presumption that it’s jointly owned. However, if it’s a bro or sis that finds it, then the TEST is the further distant the relative and the larger the amount, then the Q is reasonableness
Step 4: When the Inventory is in Final Form
Ct a copy. Put a copy in the file to prove that you included everything individually
owned by D
prepare a 1041: A fiduciary income tax return
+ Receipt #
Attorney Fees: MCR 8.303
Probate from Small Estates
Universal Succession: NOT in MICH
MICH: EPIC 700.3914: Family Agreement Statute
Limitations of Distribution
You have more of a bundle of rights w/regard to your property when you are alive.
Ct. can interfere with what D wants done with his property after death
IE: What if I want my personal rep to burn my money and sprinkle it over my grave?
Most judges will uphold this
IE: What if I want to be buried in my farari?
IE: Burn my original Picasso?
TEST: Cts look at the interest of the preservation of the item that D wants destroyed after death (particularly a societal interest with regard to the Picasso)
IE: Destroy my pet!
NOTE: Animal rights groups have no standing to object to an order such as this in the will unless they have possession of the animal.
Simpson v. Calivas: An atty who drafts a will owes a duty of reasonable care to intended benes. This duty arises out of relationship btn the parties and protection against reasonably foreseeable harm. TEST: Focus on forseeability of injury to the intended bene
NOTE: Duty of a general practitioner is to refer client to a specialist if he can’t handle the matter with reasonable skill and care. If he fails to do so, then he’ll be held to std of care of a specialist in that area.
NOTE: For a negligence action against atty, see
DUTY: Is there a duty owed to will contesters where D wanted an amendment to the will, but D died and couldn’t sign the amended will in time?
NO. There’s no status as a 3rd party bene here. Can’t bring in parol evid of D’s conversation with atty who drafted the will.
If no duty, stop here. If yes duty, go to Breach, Causation, and Damages
NOTE: Could use a properly signed letter authorizing an amendment to D’s will
WILLS: Interpreted by 4 corners approach. Parol evid is inadmissible whereas in a negligence action against atty, parol evid is admissible
Hotz v. Minyard: A/C relationship is a Fiduciary relationship. Since the bene to a will was also the atty’s client for other matters, atty owed her a fiduciary duty to act in good faith, where D told atty not to tell bene about the amended will. Atty was suppose to advise client that ethics will not allow him to breach his fiduciary duty to his client and he should have withdrew from representation bcz of a conflict of interest
Ch. 2: Die Intestate UPC 2-102
Spouse (surviving spouse)
Spouse gets 100% under UPC and EPIC
Kids from this mrg
Spouse had no other issue as well
UPC: Spouse gets 100%
EPIC: Spouse gets first $150,000 and ½ of remainder
Issue: Share the other ½ equally
D and spouse’s kids (D’s issue)
Spouse’s issue (D’s step kids)
UPC and EPIC: Spouse gets first $150,000 and ½ the remainder
Issue split the other ½ equally
D’s step kids get nothing!
**Theory behind step kids getting nothing is that their biological parent will leave them something when she dies
Issue from this mrg (D’s issue)
D’s other issue from a previous mrg or out of wedlock
UPC: Spouse gets first $100,000 and ½ the rest
Issue from this mrg (D’s issue) get ???????????
EPIC: Spouse gets first $150,000 and ½ the rest
Issue from this mrg (D’s issue) split the other ½ equally
Issue from D’s first mrg
No issue from this mrg
EPIC: Spouse gets first $100,000 and ½ rest the rest
UPC: Spouse gets first $200,000 and ¾ the rest
Parents split the other ¼ equally
EPIC: Spouse gets first $150,000 and ¾ the rest
Parents split the other ¼ equally
NOTE: If there’s only $80,000 in the estate, then it all goes to the spouse
The law looks to D’s strongest relationships
**Whenever there are issue, the parents get nothing!!!!!!**
UPC 2-103 and EPIC 2103
Issue take all
Have surviving parents
Parents take all
Surviving siblings split all equally
Note: If one of the siblings is dead, then the dead sibling’s kids will split his share equally
Only maternal and paternal grandparents are living
½ goes to maternal grandparents to split equally
½ goes to paternal grandparents to split equally
then aunts and uncles
If there are no aunts, uncles, cousins on maternal side, then that share will go to the paternal side and vice versa. If none there, then the estate escheats to the state
UPC 2-107 and EPIC 2107: Half Blood Siblings
Relatives of the half blood take the same as relatives of the whole blood. Therefore, when you get a problem with ½ siblings, look for a common parent
4 Prong Test for Common Law Marriage:
For surviving spouse under UPC 2-802 and EPIC 2801: you need a valid mrg cert
When is spouse that’s named on the mrg cert NOT a surviving spouse?
UPC 2-804 and EPIC 2806, 2807, and 2-808
Divorce revokes any right to receive a piece of the estate
If H has 2 alleged surviving spouses, the presumption is in favor of W #2
Uniform Simultaneous Death Act: (USDA) Repealed in MICH
MICH LAW: 120-hour rule
UPC 2-702 and EPIC 2702 for Testate Estates
UPC 2-104 and EPIC 2104 for Intestate Estates
Janus v. Tarasewicz: Std of survivorship is “by a preponderance” Burden of sufficiency of evid (b. of production) may be met by evid of a positive sign of life in one body and absence in the other
TEST 1: positive sign of life
TEST 2: Brain death test
Irreversible cessation of the circulatory function: if these stop, you’re dead
There are 3 systems of Distribution
SEE DIAGRAMS IN NOTES FOR EXAMPLES OF THESE
Table Of Consanguinity
Posthumous Children UPC 2-108 and EPIC 2108
How do we treat kids that are born after their fathers’ death?
IE: Children born by reproductive technology
IE: Invetro kids: See Davis v. Davis
Some states won’t allow these kids to inherit
IE: Surrogate parenthood
IE: Same sex parents: Held in Mass that kid can inherit through both mothers as the child of each
These legal issues with posthumous kids come up very often in Estate Planning!
Half Blood Relatives: Treat them as whole blood relatives UPC 2-107
Hall v. Vallandingham: Whether children who are adopted lose the right to inherit from a natural relative since they would have inherited had they not been adopted (after the death of biological parent)
UPC 2-114(b) and EPIC 2114: Step parent adoption does not terminate the rights of the adopted kid to receive through a deceased parent’s family
NOTE: UPC 2-113: One who is related to D through two lines is entitled to only one share
UPC 2-114: Parent and Child relationships
Adult Adoption: only persons who have standing to challenge a will are those persons who would take if the will were denied probate. If T adopts a child, T’s collateral relatives can’t contest the will since now, they can inherit nothing by intestacy.
O’Neal v. Wilkes:
Children Born out of Wedlock: To what extent can we establish paternity?
Uniform Parentage Act: Can establish paternity by:
UPC and EPIC (a)(1): 4 ways to establish paternity
Sharonbock Case: MICH (unpublished): Held that a 34-day-old child cannot acknowledge father
EPIC 211(a): Child born OR conceived during a mrg is presumed to be the child of both parent’s (and the husband’s child even if mom cheated)
10 years later, kid hit by car and wrongful death suit filed
Now PFT parent wants money
Held, too bad parent! In the eyes of the law, the natural parent is no
longer that child’s legal parent due to abandonment
Hecht v. Superior Ct: A decedent has a property interest in the sperm that he deposited at a sperm bank before his death. As such, he had the right to dispose of this property in his will in any matter that he pleased
At CL, there existed a presumption that parents wanted to treat all kids equally w/re disposing their assets at time of death. If parent gave a lifetime gift, then this was considered an advance pmt of that child’s share of his parent’s estate
TODAY: We reversed the CL rule
If parent gave a lifetime gift to child, we don’t make up the difference UNLESS the parent indicated that this WAS in fact an advancement and not merely a gift
UPC 2-109 and EPIC 2109: If parent wishes for the gift to be an advancement, there must be a signed writing acknowledging such by the parent OR the child
Advancement only if:
IE: Parent has 3 kids: A, B, and C. Parent gives A 10 grand during life. Parent then dies. At time of death, B and C each get 10 first and then the rest of the estate is split equally
IE: D has no spouse, but has 3 kids: A, B, and C. During life, parent gave a 10 grand. Parent dies with 50 grand in Estate. To calculate the shares in the Estate, A’s gift of 10 is added to the 50 and the total of 60 is split equally.
Children expect that their parents will leave inheritance to them equally
You have a right to assign your future interest
Spend thrift trust prevents one from selling or assigning a future interest
Release of Expectancy
IE: Child says “Pay me 10 grand now and I’ll give up my right to any other $ I would have received at your death”
Transfer of Expectancy
Managing a Minor’s Property
Minor: EPIC 5102
Person w/ Disability 3918 (legally incapacitated individual)
What do you do in the minor is expected to cash in?
If the sum of $ is more than $5000, a Conservator must be apptd for the minor
Guardian Ad Litem (GAL)
Settlements for Minors
Before settlement is approved, you need:
IE: If settlement is 150 grand, enter into a Structured Settlement where child gets the money in installments. Better yet, buy an Annuity for child bcz the $ grows tax free
With annuity, no taxes, no Ct. orders, no conservator, no fees!
NOTE: Still need a petition for a structured settlement
Bars to Succession
In re Estate of Mahoney: Whether a widow convicted of manslaughter in connection with her husband’s death may inherit from his Estate
3 lines of authority
UPC 2-803 and EPIC 2803: Statutes of Felonious Killing
NOTE: If killer is acquitted in a criminal trial (O.J), the issue of guilt can be tried again in a civil proceeding. If guilt is proven by a preponderance of the evid, then killer can be barred from inheritance (under a lower std of proof)
In this civil proceeding, there’s no double jeopardy since liberty is not at stake
Note: UPC § 2-803 bars killer from succeeding to both probate and non-probate property and killer is deemed to have predeceased the victim
Note: UPC § 2-801 killer is deemed to have disclaimed the property
Q: Is a criminal conviction required to bar one from succession?
A: No. UPC § 2-803(g): Where D is acquitted, Ct must determine whether the accused would have been convicted under the preponderance of the evidence standard of proof. If so, D is barred from succession. Probate Ct is concerned with the killer benefiting.
Note: In USA, unworthy heirs, spouses who split or commit adultery are barred.
Note: If you want to disclaim an interest in property, make sure you NEVER exercise any control over it, even for a few minutes bcz if you do, you will get taxed!
Note: Disclaimer must be signed without the Donee having received any benefit from the gift
Troy v. Hart: Disclaimer was valid even though Donee did not understand what he was signing! As such, it’s still irrevocable!
Note: If a child comes to you and wants to do estate planning for his parents who are in a nursing home, advise client that he must spend the parents’ money on them and never mind his inheritance. Can’t hide money so parents can get Medicare.
Chapter 3: Wills: Capacity and Contest
Why require mental capacity?
Test of Mental Capacity
Note: Testamentary capacity cannot be destroyed by showing a few isolated facts UNLESS they directly bear upon and have influence T’s testamentary act
Note: Legal capacity to make a will requires greater mental capacity than is required to get married
Note: Person needs less capacity to sign a will than he does to sign a K, deed, or to give a gift during life
Note: The fact that a person needs a Guardian Ad Litem or Conservator doesn’t necessarily mean that a person can’t sign a will
Note: Marriage alone will give the surviving spouse a share of the senile person’s estate although he has no mental capacity to devise it to her
Ethical consideration: To draft a will for an incompetent person is a breach of professional ethics. An atty, however, may rely on her own judgment regarding a client’s capacity. She does not have to make a thorough investigation of it
Note: There’s no requirement that T be a US citizen bcz an alien may own assets in the US
Insane delusion may cause a particular provision or the entire will to fail due to lack of testamentary capacity.
Insane delusion cases involve some false belief about a mbr of T’s family
Note: If only part of the will if affected by insane delusion, then you just throw out that part and not the entire will
Ante Mortem: Will contest before T dies
Undue Influence: Type of pressure or coercion that presses T do so something he would not otherwise have done
3 prong test
NOTE: If someone leaves me $ and I’m an atty and I wasn’t involved in the transaction and I don’t even know of it, then I’ve got a problem bcz the presumption in my case is AUTOMATIC!!!
Lipper v. Weslow: Son/atty drafted mother’s will and his cheap ass got mostly everything. Test for undue influence:
In Re Kaufmann’s Will: Homosexual couple where T gave everything to his lover who was dominating and managed all of T’s affairs. HELD, lover lost
In Re Seward’s Estate: Polish immigrant, age 27, married the heir to the Johnson and Johnson fortune, age 76. This case deals with an atty’s role in drafting a will and the ethical considerations that come with it
MICH: There are more factors:
Notes: It’s okay for an atty who’s a family mbr to draft a family mbr’s will, provided that the share going to the atty is a NORMAL share.
It’s better for a family mbr to ask you to draft a will than it is for you to ask them.
For any family mbr or close relative or friend, NEVER take a penny from them for drafting the will
EC 5-5: An atty shall not suggest that a gift be made to him/her. If the client insists, then the atty has a duty to advise client to seek independent legal advice
MRPC 1.8(c): Atty can’t draft an instrument where a substantial gift is given
This will not be the same for everyone. It depends on the client’s financial situation
There are 2 types of Fraud
Father Divine Case: T left most of estate to Father Divine. She wanted to change it and give some of it to someone else, so Father Divine hired a Dr to kill her before she had a chance to do so. Held, fraud in the inducement bcz the act prevented T from revoking Will #1 and executing Will #2.
Chapter 4: Wills
Execution of Wills
Statute of Wills-1540-England
Statute of Frauds-1677
Wills Act of 1877: Combined rules for passing real and personal property
EPIC 2502 and UPC § 2-502
EPIC follows Statute of Frauds of 1677
3 Requirements for execution of a will, except for a holographic will MICH
These are minimal requirements for execution. There can be, for example, four Ws, etc.
Attestation Clause: W signs attesting to sig of T. NOT IN MICH
There are 3 Tests to see whether a will was properly executed
IE: I’m the atty
Client at home very ill
I sign as W#1
I leave client’s house
I give will to secretary
Sec calls client and asks “Did you sign your will?” Client confirms yes and so sec signs as W#2
HELD: Telephone acknowledgement is insufficient to satisfy the Conscious Presence Test. How do we know that T is the one on the phone? How do we know that the doc is sec’s hand is really the doc that T signed?
IE: Atty prepared will
Took it to ill client in hospital
Client’s name is typed on bottom
Client signed with an “X”
2 Ws attested
HELD: Will probably be accepted even though T signed with an “X” if client intended, on his own, to sign with an X
If he can’t sign, then he can direct someone else to sign for him, as well
IE: Illiterate Client that signs with an X
Make sure you read the ENTIRE document to the illiterate client
Have more than two Ws to be on the safe side
IE: Will – part is typewritten and then signed at the bottom.
On the bottom of the will, you see, in handwriting, “I give my diamond ring to X.”
HELD: Handwritten portion is not a valid clause.
Need to know WHEN T signed the will. Therefore, throw out entire will!!
Split of authority here: Depends on when T signed
Some states throw out the entire will, some throw out the handwritten portion
IMPT NOTE: If state recognizes holographic will, then this could save this will
Estate of Peters: Notary drafted will. Took will to hospital for client and 2 Ws to sign. The Ws forgot to sign, but did witness T’s sig. 18 months later, T died and widow noticed that Ws did not sign the will. HELD: Notary’s sig does not equal the sigs of 2 Ws.
Estate of Parsons: HELD: A necessary W to a will cannot receive any property under that will.
Purging: ask prof about this
Note: If you have 2 gifts and you have to purge one, you purge both of them. Problem is Cts won’t get involved in this battle
EPIC 2505 and UPC § 2-505: No purging period!!
W’s gifts will not be considered invalid simply bcz he signed and is an interested person
Double check this with prof
The Recommended Method of Executing a Will
a. Can use staples, fasteners, ribbons, etc
b. Pages should read to indicate total number of pages, IE: 1 of 2, 2 of 2
Once the will is signed, there are three methods for its safekeeping
In Re Pavlinko’s Estate: Husband and wife had wills that mirrored each other, but they signed the other’s will by accident (spoke no English). HELD: too bad! Will could not be probated
UPC § 2-503 and EPIC 2503 Substantial Compliance and Harmless Error
Substantial Compliance: Functional rule designed to cure the inequity caused by “harsh and relentless formalism” of the law of wills
Even though the doc/will, as written, doesn’t qualify, the proponent of the will must prove by clear and convincing evidence that the D intended the doc or writing to constitute:
What the Courts will do in case of an error:
IE: I give my house on 231 Maple to John
When T dies, he owned a home on 321 Maple
HELD, John gets the home on 321 Maple
Court can and will strike the ambiguous #s and give the house on Maple to John to do what T intended to be done
RULE: If there’s an ambiguity on the face of the doc, then you can bring in extrinsic evid to determine T’s intent
Q: How do you know when you have an ambiguity?
A: If the doc that purports to be the will describes two or more dfrn ppl or things that fit the description, then you have an ambiguity OR
If there’s no person or thing that fits the description, then you have an ambiguity
In Re Will of Ranney: Whether an instrument that purports to be the last will and testament that includes signs of 2 Ws on attached self proving aff, but not on the will itself can be probated
HELD: Admitted to probate after remanded to see if will complied with Sub Comp test
Self Proving Affidavit
EPIC 2502(b) Holographic wills – Permitted in MICH
In Re Estate of Ranney: Rule is that the handwritten portions must be in T’s handwriting and must clearly express a testamentary intent
Note: Statutory Form Wills: Pre-printed do it yourself wills: Must be signed and attested to in the same manner as any attested wills
Kimmel’s Estate: T wrote a ltr to his kids and mailed it “That if anything happens, they are to get his bank acct and home.” Signed “father”
HELD: admitted as holographic will
Will that becomes effective or terminates upon an event subsequent
IE: Someone’s going into surgery and is afraid he’s going to die
Note: If you’re going to execute a conditional will, be VERY specific as to when the condition will terminate or else the bene will get the estate even if you die as a result of something else and not the operation
Revocation of Wills UPC § 2-507 and EPIC 2507 How you know if an act constitutes a rev
All wills are subject to modification and revocation
There are 2 ways to revoke a will
EPIC 2507(2): If subsequent will does not expressly revoke the prior will, the execution of the 2nd will revokes the 1st will by inconsistency IF T intended the 2nd will to replace, rather than supplement the 1st will. ON EXAM
EPIC 2507(3): If subsequent will does not expressly revoke the prior will, but makes a complete disposition of T’s estate, then 2nd will is presumed to replace the 1st and revoke it by inconsistency. Presumption must be rebutted by clear and convincing evid. If not rebutted, then will #2 controls. ON EXAM
Note: If subsequent will does not make a complete disposition of T’s estate, then it is not presumed to revoke the prior will, BUT is it viewed as a codicil to the prior will
IMPT NOTE: If will was last in the possession of T, if at the time of T’s death, the will cannot be located, there’s a presumption that T destroyed the will w/intent to revoke it
EPIC 2507 (will be on Exam!)
How do you know if something’s a revocation?
Harrison v. Bird: T left orig will with her atty. She wanted to revoke her will so she called her atty and told him to tear it up. He did and mail the pieces to her w/a ltr. When she died, pieces were not found, but ltr was.
HELD: Presumption (rebuttable) arose that T destroyed it herself.
HELD: If T is not destroying it herself, then it must be destroyed in D’s presence and at her direction
Partial Revocation: Where T revokes part of a devise, rather than revoking the entire will
IE: Residue to A, B, C, and D
At time of T’s death, the will is found with T, and in pencil, C’s name is crossed out
HELD, C gets nothing bcz of the presumption that arises when will in T’s poss at time of T’s death: that T intended to destroy this part of her will
NOTE: If you’re in a state that doesn’t recognize partial revocation by physical act, then ignore the marks and all four take
IE: You have a valid holographic will and you are in a state that doesn’t recognize partial revocation by physical act. Some names are scribbled out on the will
HELD, If the will and the scribbles are totally in T’s handwriting, then the will is still valid, even with the scribble marks
Probate of Lost Wills
Lost or destroyed will w/o consent of T or destroyed w/o compliance of statute can be admitted to probate if its contents are proven by a preponderance of the evid
IE: What if house burns down and the orig will is inside?
A: Since T did not intend to revoke/destroy her will, then it’s still valid
Q: How do you probate a lost will?
If: Will was unintentionally destroyed and contents are proven under EPIC 3402, petition to probate a lost will must include:
Thompson v. Royall: T executed her will and then she wanted to destroy/revoke it. Instead of destroying the will, she kept it as memoranda in case she decided to execute a new will. HELD: Canceling words must be written on the actual words of the will or codicil and must destroy the orig words.
NOTE: If this case comes up in Mich, argue the Substantial Compliance Doc
On bar, exam, and in real life!
Carter v. 1st United Methodist Church: D’s will, executed in 1963, was found in 1979 amongst her personal items (after she died). With it was a ltr: handwritten, dated 5/22/78, captioned as will, unsigned, unwitnessed. She crossed out the property disposition on the 1963 will.
HELD: Evid that she wanted to revise will, not revoke it.
General rule is that the burden of proof is on the person attacking the will offered for probate BUT where a will has been cancelled or obliterated in a material part, a presumption of revocation arises and the burden is on the proponent of the will to show that no revocation was intended
Also, cancellation marks on the 1963 will and 1978 writing rebuts the statutory presumption of revocation. Since the two were found together, this shifted the burden to caveator to prove that D would have preferred intestacy. This was unrebutted and caveator lost.
Doctrine of Relative Revocation:
Therefore, look for:
Carter Case (above):
Original will: 1963 will
Revocation: scratch marks on the 1963 will
Followed by gift or doc that fails: 1978 failed and could not be incorporated into the 1963 will
Held, revocation of the 1963 will was dependent and conditioned upon the 1978 writing being incorporated into the 1963 will. Because the 1978 writing failed, T did not intend to revoke her 1963 will and die intestate. GOT IT!!
IE: “I give the sum of $1500 to my nephew Charles”: typewritten, but in handwriting, 1500 is scratched out and is replaced by $2000, where T’s frame of mind is give to give nephew more money
IE: What if T decreases the amount instead?
Q: Should we use DRR to reinstate the orig gift of $1500?
A: This goes to whether we have evid, on the face of the doc, that T intended to give nephew any money.
Only use DRR is there is evid on the face of the doc, by a preponderance, that T wanted to revise the amount given to her nephew.
REMEMBER: You always give the orig amount or zero!! NEVER give the revised amt! Oh, and if the amount is cut in half, this is evid that T would rather Donee have nothing! If the orig gift is 1000 and T reduces it to 501, then this is enough to tip the scale and give Donee the full 1000. (cheap bastard)
IE: “I give the sum of $1000 to nephew Charles.” And in handwriting, Charles’ name is scratched out and grandniece Nancy’s name is written over it.
Q: Do we have a valid, holographic codicil?
A: No, bcz standing alone, the written words do not qualify as a valid ????????
Q: Do we have a valid partial revocation?
A: Yes, use presumption that if last in T’s possession and found with T at time of death, then T intended to partially revoke that gift. NOTE: This doesn’t necessarily mean that Nancy gets it
Q: Should we impose DRR and thus give the money to Charles?
A: No, nobody gets it. Standing alone, the words do not qualify as a valid holographic codicil or will and as such, Nancy doesn’t get it. Since Charles doesn’t get it either, let it pass through the residuary clause of T’s will. If the residuary clause fails, then it passes through intestacy
Estate of Alburn:
1959 will and in it, a revocation of all previously executed wills
T believed that the 1955 could be revived if she destroyed the 1959 will, so she did under the mistaken belief that the 1955 will could be revived. There was evid that T wanted the 1955 will to stand, so we know T did not want to die intestate
HELD: Since T destroyed the revocation of the 1955 will under the mistaken belief that the 1955 could still stand, then the 1959 will was the valid one
UPC 2-509 and EPIC 2509: Revival of a will is allowed
UPC 2-509: Breaks down presumptions for or against revival
If you have a gift or will that’s later revoked by any revocatory act, then the prior will remains revoked unless it is revived
Therefore, presumption is against revival unless there’s evid, by a preponderance, that T intended to revive the prior will
Therefore, presumption is in favor of revival unless there’s evid, by a preponderance, that T did not want the gift revived
Revocation by operation of law
IE: In will, spouse gets my home, car, $. If we get divorced, the gift is automatically revoked
2. By subsequent marriage or birth of a child:
IE: You’re married
You write spouse 1 into the will
6 years later, you divorce spouse 1 and marry spouse 2, but you haven’t changed your will to get rid of 1 and add 2!
HELD, by operation of law, gift to spouse 1 is automatically revoked
Components of a Will
Integration of Wills:
IE: You have a 4-page will and a codicil at the time of T’s death
Therefore, integrate the 4-page will and the codicil and read the two together
Rules of Integration
Republication by Codicil
IE: Revive a purged gift
$ to Gower
Land to Alice
Signed by T and dated
Witnessed by W1, Gower, and Alice
Therefore, Since Gower and Alice are interested Ws, the will only has one W and as such, is not validly executed. Now, Alice’s and Gower’s gifts have to get purged.
Q: What if, after this, we find a codicil that says:
“diamond ring to Jill”?
Signed by T and dated
Witnessed by W1, W2, W3, and W4?
Therefore, this validly executed codicil, executed after will, is of testamentary crc and as such, the codicil republishes the orig will that failed and the Donees get their gifts.
Incorporation by Reference UPC 2-510 and EPIC 2510
In order to incorporate another writing into a will:
Will dated 03/25/32
Ltr dated 7/03/33
Codicil dated 11/25/33
Combine all 3 docs:
Ltr not in existence at time will was signed
Codicil republishes the validly executed will as of the date of the codicil (11/25/33)
Therefore, the will’s valid date is now 11/25/33
Since ltr is dated 07/03/33, it can be incorporated into the will
Therefore, all 3 are valid!!
UPC 2-513 and EPIC 2513: an Exception to our rules of Integration, Republication, and Incorporation
We will recognize, as a valid part of the will, a list of tangible personal property
· Can’t put:
NOTE: You BETTER put a reference to a list in every will that you write
“I may leave a list of tangible personal property” even if client says no.
Will: Leave ring to A
List: Leave same ring to C
The will controls even if the list signed afterwards bcz the will is testamentary in crc
Acts of Independent Significance UPC 2-512 and EPIC 2512
· There’s a reference in the will
· To a generalized description of property
Pour Over Will
Any assets going through probate and ending up in the residue, these as get “poured over” to the trust and pass to the benes via the trust. In this case, the trust is referred to in the will and T signs the trust first.
Contracts relating to a Will UPC 2-514
1. K to make a will
Child says to parent “I’ll give up my job and take care of you T, if you leave me 50 grand in your will.”
If the child performs his end of the K, then he has a contractual claim against T’s estate if T did not leave 50 grand to the Child. If no clear-cut contractual language exists, sue on Quantum Meruit, which will compensate Child for services rendered.
2. K not to revoke a will
T leaves gift to A in will and then enters into a separate K with A that says T will not revoke the will or gift
Reciprocal Wills or Mutual Wills
Via v. Putnam: Surviving spouse v T’s children of 1st mrg. Wife 2 wasn’t in T’s will.
Held, can’t totally disinherit a spouse. Even if spouse is expressly excluded she will still get her statutory share after creditors, expenses, etc are paid. This is public policy
Wilhoit v. Ppl Life Ins Co: When you name a bene on anything and if your bene dies before you do, then there’s no bene anymore. The proceeds will not pass to the bene’s estate, but will pass through you estate instead.
Estate of Hillowitz: T was mbr of investment club. Partner agreement that widow of mbr would get mbr’s share upon his death.
Held, agreement btn club mbrs, a valid and enforceable K, created a 3rd party bene interest in Widow. This K is a non-testamentary, non-probate transfer under UPC 6-101.
Cook v. Equitable Life: T bought a life ins policy where all changes had to be properly made. He named Wife 1 as bene. T remarried and left all to his Wife 2 and kid from 2nd mrg.
Held, this Ct agreed with Strict Compliance. Wife 1 won and all changes had to be properly made. Rule was that Wife 2 must have made some showing that T had done everything in his power to comply w/the provisions of the K and that he was unable to change the bene through no fault of his own.
NOTE: In most states, divorce revokes a will in favor of a spouse by operation of law, BUT does not revoke the designation of the former spouse as a life ins bene
MICH: Required by statute to indicate in the divorce decree rights w/re to life insurance where one spouse was named bene. If it’s not in there, then look to the language of the life ins. K and see what its says about what will happen in case of divorce.
NOTE: In Mich, it’s very unlikely that an ex-spouse will get the life ins. $
Multiple Party Bank Accounts
There are 3 types of ownership
UPC 6-201 Know these defs!!
UPC 2-611: Ownership rights of multiple parties during the lifetime of the parties
“Parties” refers to each person’s contribution w/exception that if they’re married
UPC 2-612: Rights at time of death
IE: Mom, dad, and their two kids A and B
If B dies, then mom, dad, and A will share equally
If dad dies, then mom owns ½ and A and B each get ¼
MCL 487.711: MI statutory joint account act—Did not adopt UPC 6-201
MI statute recognizes the 3 types outlined above
In Re Cullman’s Estate: MICH Case: Issue was how do you know what kind of bank account the person wanted to open?
Held, you have to look to D’s intent at the time the account was opened or at the time the joint account was opened.
NOTE: Statements made before or after the account is open are inadmissible as hearsay!
NOTE: There is a presumption that the account is joint with A and B having equal rights to withdraw $ and the survivor gets the balance when the other dies. To rebut this, you must prove that D did not want title to vest in the joint owner by looking at D’s intent at the time the account was open!
Gifts of Personal Property (hot topic on MI bar)
Elements for a gift are:
NOTE: Issue on the bar is always with delivery!
Pilafas: Held, terms of trust control how a trust is to be amended or revoked
NOTE: If trust does not indicate this, then a phone message or oral revocation may be sufficient
Pour Over Will
Assets from a will “pour over” to a trust such that these assets don’t have to go through probate, Instead, the assets pour over and pass through the trust.
Amendments to a trust will not affect/revoke the validity of a will.
HINT: When doing a trust, always do a pour over will and execute the trust first.
State St. Bank v. Reiser: Where D created an intervivos trust and owed bank $ for a loan at the time of his death, Held that Creditors can reach a trust since:
Clymer v. Mayo: D created a marital trust, but at the time of her death, she was divorced from her H and the cheap bastard still wanted the $. Held, the intent of D when creating testamentary documents (trusts) is always critical. She intended for her H to get the $, not her ex-H
Also, UPC 2-804 and EPIC 2804 eliminate rights of ex-spouse’s heirs to inherit (as well as the ex-spouse)
Power of Attorney
Durable Power of Attorney
Springing Power of Attorney
If you execute a POA and then you become incapacitated, then it’s void
IE: If I execute one before I go on a trip and give parental authority to my sis and I go into a coma during my trip, then sis has to go before the Probate Ct to get appointment of Guardian so Ct can supervise it
Franzen v. Norwest Bank: POA is an instrument by which a principal confers express authority on an agent to perform certain acts or kinds of acts on the principal’s behalf: Held, terms of POA need only evidence an intention to authorize the agent to make decision concerning the principal’s interest in trusts, generally, and not necessarily a particular interest
Need same amount of mental capacity as is needed to sign a K, in order to sign a POA
Health Care and Disposition of the Body
Cruzan: Veggie state daughter and parents asked hospital to pull the plug
Contest of Wills
Plain Meaning Rule: The will is construed based on the 4 corners of the document. If there is no ambiguity, then you cannot admit parol evid to get at T’s intent.
IE: T gave A 5 thousand in the will. Cheap ass A comes along and says that T told him she was going to increase his gift to 10 thousand. Held, A gets only 5 thousand
In order to change the gift, you need:
A Holographic will OR
Subsequently executed will or Codicil
Mahoney v. Grainger: In will, T left all to “heirs at law” Will contest btn her cousins and aunt, where aunt would take priority as an heir.
Held, her aunt was her only heir at law (although she told her atty that she wanted her aunt and cousins to share it)
PLAIN MNG RULE: There is no room for extrinsic evid where no doubt exists from the face of the doc as to the property bequeathed or the identity of the bene. Only where the testamentary lang is not clear in its application to the facts that evid may be introduced as to the circumstances under which the T used that lang in order to throw light upon its meaning.
There is one exception to the plain mng rule
IE: Roy called his wife “mother” for 40 years. In his will, he left all to “mother”. In this case, you would be allowed to bring in parol evid that he had a personal usage for that term and you need to prove that he was referring to his wife, by a preponderance.
Fleming v. Morrison: T had atty draft a will that left all to Fleming, but after atty drafted it, T told atty that it was a fake, only to get Fleming to sleep with him (dirty bastard) Atty still signed as a W! Held, atty was allowed to bring in parol evid bcz here, no one was challenging the contents of the will, but the execution of the will. You can bring in as must parol evid to prove that a will was not duly executed.
Latent Ambiguity: An ambiguity that doesn’t appear on the face of the doc, but appears when the terms of the will are applied to T’s property or designated benes
Estate of Russell: T’s will said “all to Quinn and Roxy Russell” and on the back said “gift to niece”
Latent Ambiguity here. There’s no ambig on the face of the will, but it appeared during disposition bcz all found out that Roxy Russell was T’s dog! We found out who Roxy was when we went beyond the doc. As such, we were allowed to introduce parol evid to find out if there was a person named Roxy Russell.
Patent Ambiguity: An ambiguity that appears on the face of the doc.
Equivocation: Where a description fits two or more external objects equally well.
IE: $ to my niece Alice. Turns out that T has two nieces named Alice. Therefore, direct expressions of T’s intent is admissible here.
Misdescription of property: False statements may be stricken
Erikson v. Erikson: T executed a will including his fiance, got married two days later, but never referred to the mrg in his will. Issue was whether the mrg operated as a revocation of T’s will.
Issue: Whether Ct should have admitted extrinsic evid of T’s intent that his will would not be revoked automatically by his subsequent mrg.
Held, there was a drafting error by atty. Why the hell would anyone execute a will and want it revoked two days later? Doesn’t make sense.
RULE: Cts do not correct mistakes, HOWEVER, they can and do strike terms to get at T’s intent, especially if there’s a scrivenger error.
Also, argue Substantial Compliance here.
Anti-Lapse: What happens to a gift when Devisee dies before T??
Will: House to A
Car to B
Residue to C and D
D is personal rep and says “A died 5 years ago!”
Q: What happens to the house?
A: The gift lapses and becomes residue.
BUT, exception is the Anti-Lapse statute
Allen v. Talley: Will said to “my living bros and sis” 3 bros/sis died before T. Issue was whether their portions should have gone to their issue.
Held, in the absence of an ambiguity, we must construe the will based on the express language used by T. There was no ambiguity in “living bros/sis”, so issue didn’t get it.
Jackson v. Schultz: Will said “all to my wife and her heirs.” W predeceased T. Held, “and/or” can be used interchangeably to get at T’s intent. Anti-Lapse did apply.
Rule of Construction: If you are trying to show that T intended to treat a grp as a class, then you are allowed to bring in extrinsic evid.
There are 3 types of bequests
Exceptions to the Abatement Statutes UPC 2-606 and EPIC 2606
Abatement is on the Exam for sure!!
House at 445 Elm to A Specific 120,000
Any car I own to B Specific 23,000
My diamond ring to C Specific 4,000
Stock at GM to D Specific 18,000
20,000 to E General 20,000
30,000 from Comerica acct to F Demonstrative 30,000
there ‘s only 10,000 in the acct at the time, so 10 is specific and 20 is general
Residue to G 60,000
Gross Estate: 275,000 NEVER CHANGE THIS # ON AN EXAM!!
Comerica Acct 10,000
Now, we need to pay T’s debts and taxes before any gifts can be distributed.
Use 60,000 from the residue
Go to general devises and abate them
40,000 in general bequests
- 60,000 Residue
- 40,000 General bequests
35,000 We need 35,000 more to pay off all debts/taxes
Now go to the specific bequests. Divide 35,000 into 175,000. You get 20%
Take 20% out of every specific gift and put this amount towards the balance of debts/taxes owed. Here, you pro rate amongst all specific gifts.
Rights of the Surviving Spouse
Then go to gifts to family and friends in the will
The surviving spouse’s elective share
IE: 200,000 Estate where Will gives Spouse 5,000
Under intestacy, spouse gets 150,000 plus ½ the remainder
Under elec. share, spouse gets:
½ of 150,000
= 75,000 with 50,000 left over
½ of the 50,000 is 25,000
Take another ½ of the 25,000 and add that to the 75,000
subtract from the 87,500 the amt received by spouse under jointly held prop, etc.
And this is what the surviving spouse gets under the elective share
Augmented Estate: UPC 2-201 Not in MICH
Estate of Cross: T left all to son and nothing to W. W was in nursing home and Medicaid was paying for it. Held, W was required to elect against the will and take her elective share. This money would then pay for the nursing home instead of Medicaid. Can’t avoid incoming $ so you can remain eligible for Medicaid. Cheap old hag!
Estate of Cooper: A homosexual lover can’t elect against T’s will and take a spouse’s elective share, even though the two lived together like a married couple
Sullivan v. Burkin: T left nothing to spouse and transferred all his assets to an intervivos trust with someone else as bene. RULE: If it appears that T transferred his assets to an intervivos trust to hide and keep the assets from the spouse, then the innocent spouse will be able to take her elective share from assets in the trust
In Re Reynolds: Trend across the country is that they’re allowing the evasion of an irrevocable trust for purposes of calculating a surviving spouse’s elective share
Estate of Garbade: If spouse signs away her right to elect against her husband’s will in a prenup, then this will be enforceable under K law absent fraud, duress, mistake, etc
For a Valid Prenup, you need:
Pretermitted (Omitted) Spouses and Children
UPC 2-301 and EPIC 2301 Pretermitted Spouse Statute
UPC 2-302 and EPIC 2302 Pretermitted Child Statute
EPIC: Now, if T had a mistaken belief that child was dead at the time the will was executed, then child can attack the will. Otherwise, child gets nothing if he was just forgotten by parent
Therefore, Child born AFTER execution of will
T thought child was dead when will was signed
Then, child wins.
Azcunce v. Estate of Azcunce: Good exam Q
Codicil 1 8/8/83 *codicil republished will as of date of codicil
Kid born 3/14/84
Codicil 2 6/25/86 *Codicil republished will as of date of this codicil
*Bcz kid was born and there was no mistaken belief that she dead at the time of republication by codicil #2, she was in existence on 6/25/86. Therefore, she loses!
MICH WRONGFUL DEATH
Trusts: Dividing the legal and equitable interests in one’s property
Legal interest: Belongs to Trustee. Can sell/make decisions about the prop. Not allowed to enjoy the proceeds
Equitable interest: Belongs to the bene. May keep the prop w/in terms of the trust. has no right to sell it, etc.
There are only 2 broad categories /mutually exclusive trust
Trusts can be mandatory or discretionary
There are 5 components in a trust
Hebrew Univ. v. Nye: The facts of this case today, would create a trust
IE: Settlor funded trust and named bene
Bene died before S
Trust silent on this issue and thus, there’s no one to give the assets to
THEREFORE, Assets revert back to S
TEST: **Bene doesn’t exist at the time a Resulting Trust is created
**Bene disclaims his interest w/in 9 months
RES: Principal corpus
Unthank v. Rippstein: A trust must be specific as to how it’s going to be funded. Must have $ in the corpus. If you get a case like this on the exam, where the trust was silent on where the trust $ was supposed to come from, then ARG 1: It’s a holographic
ARG 2: That it was just a gratuitous promise, bcz there was no intent to create a trust f.b.o. bene
Q: How do you fund a trust?
Brainard v. Commissioner: You can put a future interest into a trust and it will still be valid
Speelman v. Pascal: T had a future right to sell a musical and make $. Letter to P created an assignment of this right under K law. Therefore, T created an irrevocable trust f.b.o. P (his slut)
Clark v. Campbell: Trustee to distribute $ to “T’s friends”
Held, Bequest to friends shall fail for want of certainty as to who the benes are
RULE: If class of benes described might reasonable be said to answer the description, the power is valid (valid for power of appointment)
In Re Searight’s Estate: Honorary Trust
RULE: Can’t leave $ directly to a pet/animal, but can create an honorary trust to assure the care of that pet
Hieble v. Hieble: Oral intervivos trust of land
Oral agreements transferring real property are unenforceable for want of compliance with the S of Frauds, BUT S of F doesn’t apply to trusts arising out of operation of the law
Held, Equity should impose a constructive trust where Donee received land by deed under an oral promise to reconvey the property back to Donor (Cheap ass Donee wouldn’t convey it back and so Ct created a constructive trust) (See elements above)
Note: In order to receive equity, one must do equity (must have clean hands)
Oliffe v. Wells: For a Semi Secret Trust, where we know there’s a trust, but don’t know who the benes are, then the trust shall fail
Semi Secret Trust: Although there’s no ambiguity, the Ct will allow extrinsic evidence to get at T’s intent AND to prevent unjust enrichment
Q: How do you know if a Trust is revocable v. irrevocable?
A: Settlor must reserve the right to revoke. Otherwise, there’s a presumption that the trust is irrevocable (ON EXAM)
Marsman v. Nasca: Discretionary Trusts
Shelly v. Shelly: Bene had spendthrift trust. Issue was whether his ex-wives and kids could go after the trust assets for alimony and child support. The $ was to go to Shelly’s kid’s in case of an emergency.
NOTE: Shelly is not the general rule. In Shelly, the guy skipped out and when it came time for trust assets to be distributed, he was no where to be found. so Ct ordered that the $ be paid to kids and ex-wives.
Bar Exam: Same facts as Shelly w/o the emergency clause: No alimony from trust and no child support bcz this is a discretionary trust and there’s no emergency.
US. v. O’Shaughnessy: Pure discretionary trust
Miller v. Dept. of Mental Health (Mich App): T’s daughter in mental health home. She’s been there ever since childhood and T was supporting her, however he stopped supporting her when she turned 18.
His trust said “Trustee may distribute assets as Trustee deems necessary.” Issue was whether T intended to continue supporting daughter after his death.
Held, no bcz facts hinted that trust was purely discretionary and the $ would only have lasted another 3 years. Why would T want to support her for only another 3 years?
Trust of Stuchell: Petitioner wanted to modify trust so that the retarded child bene wouldn’t get any $ since he was getting Medicaid.
Held, one way to modify a trust is that all benes must consent. If one bene is not of sound mind and can’t consent, then no modification!
Modification of Trusts
Shenandoah Valley v. Taylor: Trust—pay out income of trust to kids in grades 1,2,3 in the school every Easter and Xmas
Note: If not a charitable trust, then it’s terminated “Ab Initio” (from the beginning) bcz it violated the Rule Against Perpetuities and $ then goes to the heirs under the intestacy statute
Rule Against Perpetuities (New Uniform Statutory Rule Against Perpetuities)
OR (this is where the change is)
“90 years wait and see”
Modification of Charitable Trusts
Receipts: Income produced by the principal is allocated to the income
Asset is an apt bldg: When you collect the rent, it goes toward the income
What if you sell the parking lot adjacent to the bldg? It goes to the principal
Stock $: Principal
Interest from bank acct: Income
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