Beruflich Dokumente
Kultur Dokumente
VALIDITY OF WILLS:
Kirkeby v. Covenant House (Oregon 1998) p. 417
Must the witnesses sign in the presence of the testator?
Facts: The wife (Margaret) had a few wills. When she makes the final change to the will, she asks Lyman to type
up her will. Lyman does so and then Margaret signs the will. Then she calls a notary and tells him that Lyman is
bringing the will over and the notary notarizes it. Then Margaret called 2 neighbors and asked them to sign her
will and that Lyman would be bringing it over.
Analysis: The court had the biggest problem with the fact that the witnesses did not have the will with them when
Margaret called the neighbors and that she called and then later, Lyman brought the will to them.
In Re Estate of Peters (New Jersey 1987) p. 421
Facts: Witnesses saw the testator sign the will in the hospital, as did a notary. But the notary neglected to have the
witnesses sign. 15 months later, the testator died.
Timing issue:
o Must sign within a reasonable time after seeing the testator sign
o What is a reasonable time? Who fucking knows
Contemporaneously or in close succession
*In Georgia, the statute doesnt include reasonable time, because the statute says explicitly attested and
subscribed in the presence very strict requirement.
In Re Estate of Edward Frank Muder (Arizona 1988) p. 431
HOLOGRAPHIC WILLS
Okay if the signature and the material provisions of the will are in the testators handwriting
The proponent of the will argued that the material provisions are the property and who the testator wants the
property to go to
o The opponent wants the fact that I do declare this is my last will and testament was material
NOW: Material Portions
In Re Estate of Charles Kuralt (Montana 1999) p. 437
Timeline:
o Wife probates his estate in NEW YORK
o Shannon files petition for ANCILLARY PROBATE in Montana
o 1989: HOLOGRAPHIC WILL: MONT land to Shannon
o 1994: FORMAL WILL: all real property
o 1997: Letter to Shannon: Ill have the lawyer visit the hospital to be sure you inherit C
The court seemed to be persuaded by the fact that he had already engaged in a sham sale where he already sold
her part of the land in a sham sale
Because of the procedural posture, the lower court granted a motion for summary judgment, so this court sent it
back saying there was a genuine issue of material fact and on remand, the lower court found that this was a valid
codicil
In Re Snide (New York 1981) p. 447
Facts: The wills got switched. (They were mutual wills though they gave everything to each other)
o The only reason this is in court is because the minors Guardian ad litem was objecting to it.
Held: Because it was clear what they both wanted, formalism should be over-run in this case
o Substantial Compliance Doctrine: A court considered the level of compliance with statutory formalities
GA has started to be okay with this
Dissent: Very angry. Formalism is the foundation of wills and estates planning.
Harmless Error Doctrine:
In re Estate of Wiltfong (Colorado 2006) p. 452
Facts: Letter given to ling-time life partner that was typed (not holographic)
Whose burden? The proponent (burden of proof = Clear & Convincing evidence)
Chapter 5: Trusts
Palozie v. Palozie (Connecticut 2007) p. 209
Trust not created because the did not prove that the mother intended to create a trust and name herself as the
trustee.
If you want to transfer real property to yourself as the trustee, it must be additionally recorded in real property
records down at the courthouse
Side note: trusts dont require witnesses [O.C.G.A. 53-12-25]
Matter of Estate of Bollinger (Montana 1997) p. 214
I feel confident my father/stepmother will use this money for the best interests of my children
Does this create a trust?
NO RADFORD: Dont play around with the words. Say what you want.
Clark v. Campbell (New Hampshire 1926) p. 225
to make disposal by way of memento to such of my friends as they, the trustees, shall select
Friends is not considered an ascertainable beneficiary class
Gregory v. Bowlsby (Iowa 1902) p. 234
Did the father owe a fiduciary duty to his children from his first marriage?
o Dad made promise that he didnt keep
Promise about real property is unenforceable if not in writing
o His intention was fraud
The court imposed a constructive trust in order to prevent an unfair result.
Rowe v. Rowe (Oregon 1959) p. 308
Facts: Testamentary Trust; Trustee = Wilbur Rowe (); Life beneficiaries = parents of wife; Remainder
Beneficiaries = beneficiaries under the will.
o Plaintiff = Grandfather (the life beneficiaries)
o Defendant = Trustee & Remainder Beneficiaries
o Type of Action = Declaratory decree
o Trust gives discretion to the trustee
Speed v. Speed (Georgia 1993) The invalidity of self-settled spendthrift trusts stems from the idea that no settlor,
disabled or otherwise, should be permitted to put his own assets in a trust, of which he is the sole beneficiary, and shield
those assets with a spendthrift clause, because to do so is merely shift[ing] the settlor's assets from one pocket to another,
[in an attempt to avoid creditors]