Wills, Trusts, and Estates Spring 2013; Donaldson READING ASSIGNMENT WORKSHEET 2 Reminder: Complete this worksheet before

the start of the class to which it relates. We will use this worksheet as a guide for class discussion. This worksheet may be subject to inspection as explained in the course syllabus. Accordingly, you should have this worksheet readily available in print or electronic form by the start of class. 1. This first question consists of parts (c) and (d) from Question 5 on Reading Assignment Worksheet 1. Since we did not have time to finish it in our last class, we will start Wednesdays class with this question. Answer the following questions in the context of the Exercise on page 30: (a) What do you do when Hernando reveals the existence of a nonmarital child?

Explain to him that I cannot, for ethical reasons withhold that information from Winona if I am to represent them jointly, because that information is important and that I can not advocate on her behalf to the best of my ability if I was to withhold that information. I would not divulge the information to Winona if Hernando then chose to not continue with a joint representation, and, if Winona sought to retain my services, I could not ethically serve her as I had information that was told to me in confidence, that I may not share with her, and it would limit my ability to serve as the best advocate for her. (b) What do you do if Hernando wants to leave property to the nonmarital child through a secret trust arrangement? I would advise him that to do so would require a divulgence of the information to Winona and that I could not create a secretive trust and keep that information from Winona, serving as her counsel under joint representation.

Note: We will not cover the rest of Reading Assignment Worksheet 1 in class. Instead, I have inserted suggested answers to the remaining questions below. After you compare your answers to these suggested ones, feel free to contact me with any questions. In one sentence, what is the holding of Schneider v. Finmann on page 34? An estate may commence a malpractice claim against the decedents lawyer for negligently advising the decedent with respect to an asset that resulted in an increased liability for estate taxes. In one sentence, what is the holding of Sisson v. Jankowski on page 36? An attorney does not owe a duty of care to a prospective beneficiary to have a document executed promptly.

2. (This is a variation of the Problem on pages 64-65 of the casebook.) David and his second wife, Wanda, had a marriage ceremony seven years ago and have lived happily ever since in the same house. David died recently. (a) David and his first wife, Francie, had a child, Alice, during their marriage. David and Francie were divorced 10 years ago. Alice is 12 years old at Davids death. Is Alice Davids child for purposes of intestacy? Why or why not? Yes. Marital presumption, Alice was born during their marriage, so there is a rebuttable presumption that David is the father. For purposes of intestacy, Alice is considered his child. UPA 204(a)(1) (b) David and Wanda had a child, Bob, during their marriage. Bob is six. Is Bob Davids child for purposes of intestacy? Why or why not? Yes, for the same reasons as Alice. Bob was born while David and Wanda were married. UPA 204(a)(1) stipulates this. (c) How would the answer to (b) change if Davids marriage to Francie had never legally terminated? That is, Wanda believed in good faith that she was legally married to David at the time of Bobs birth but in fact she was not because David was still married to Francie? According to UPA 204(a)(3), before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce [or after a decree of separation], there is a presumption of paternity and Bob would be considered Davids child for intestacy purposes. (d) How would the answer to (b) change if, in fact, David is not the genetic parent of Bob? (In other words, is there any way to overcome the result in part (b)?) Depending on the jurisdiction, there is a rebuttable presumption of paternity and David (or the executors of his estate) could bring genetic evidence forward to rebut the presumption. UPA 204(b). (e) child? According to the same UPA 204(a)(3) language, as long as Wanda gave birth within 300 days of Davids death, there remains a rebuttable presumption of paternity. (f) How would the answer to (e) change if Wanda gave birth to Catherine one year after Davids death? Catherine would not be presumed to be Davids child, because the birth occurred more than 300 days after Davids death. Since she does not fall within the marital presumption, she is considered a nonmarital child and could only inherit from her mother. 3. (This problem is adapted from the Problems on page 70 of the casebook.) Daniel and Mary had a brief affair in college and then moved to opposite ends of the country. They never married. As a result of Forty-five days after Davids death, Wanda gave birth to Catherine. Is Catherine Davids

the affair, Mary became pregnant and gave birth to Carol. Mary raised Carol alone, never brought a paternity proceeding against Daniel and never sought child support from him. Until the day he died, Daniel did not know about Carols existence. (a) Can Carol inherit from Daniel under the Uniform Parentage Act? Explain your answer.

Under UPA 601, Carol or her mother could bring an involuntary paternity action. Without this action, Carol could not inherit because she is a nonmarital child and does not fall under any of the presumptions of paternity under UPA 204(4) and (5) and there was no voluntary acknowledgement of paternity from Daniel. (b) How would the answer to (a) change if Mary and Daniel were living together when Carol was born? Assume that, one year after Carols birth, Mary and Daniel went their separate ways. Daniel continued to visit Carol, told his family that she was his child, sent her birthday gifts, and went to her school plays. Under UPA 204(a)(5), Daniel would have had to live with the child for the first 2 years of her life and openly held out the child to be his own, but here, he only lived with her for a year, so the element is not met. The presumption is rebuttable though, under UPA 204(b). (c) How would the answer to (a) change if Mary brought a paternity suit against Daniel when Carol was five years old and the court adjudicated Daniel as Carols father? Assume Daniel never visited Carol or paid child support, even after the adjudication. UPA 601, the adjudication is sufficient to establish the parent-child relationship with Daniel and Carol.

(d)

How would the answer to (a) change under Georgia law? (See OCGA 53-2-3.)

Under OCGA 53-2-3 (2)(A) A child born out of wedlock may not inherit from or through the child's father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless: (i) A court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law; (ii) A court of competent jurisdiction has otherwise entered a court order establishing paternity; (iii) The father has executed a sworn statement signed by him attesting to the parent-child relationship; (iv) The father has signed the birth certificate of the child; or (v) There is other clear and convincing evidence that the child is the child of the father. None of these elements are satisfied, so Carol may not inherit from Daniel, only Mary, absent an action to establish paternity in a court. Start with problems here on Friday: 4. (This is adapted from the Problems on page 74 of the casebook.) Twelve years ago, Carmelo and Aiesha gave birth to little Sebastian. Unable to afford to raise Sebastian, they gave him up for adoption when he was only six weeks old. Mario and Inez adopted Sebastian. (The chart on page 74 may help.) All of these events happen in a jurisdiction that has enacted the Uniform Probate Code.

(a)

If Mario died this year, may Sebastian inherit from his estate? Why (not)?

Yes, under UPC 2-118, a parent-child relationship exists between an adoptee and the adoptees adoptive parent or parents. (b) If Carmelo died this year, may Sebastian inherit from his estate? Why (not)?

No, under UPC 2-119, a parent-child relationship does not exist between an adoptee and the adoptees genetic parents. Sebastian was legally adopted by Mario and Inez, severing the inheritance ties with Carmelo and Aiesha. (c) Assume Mario is already dead. If Marios mother died this year, may Sebastian inhert from her estate? Why (not)? Yes, since the parent-child relationship has been established under UPC 2-118, Sebastian may inherit from Marios mother. (d) Assume Aiesha is already dead. If Aieshas father died this year, may Sebastian inhert from his estate? Why (not)? No, under UPC 2-119, the inheritance ties were severed with the adoption, extending to the genetic parents and their genetic relatives. (e) If Sebastian died this year due to the negligence of a driver and there was a large damage award, which of the following individuals could share in this award if the applicable wrongful death statute gives the award to Sebastians intestate heirs: Carmelo, Aieshas mother, Inez, Mario, Marios mother? Explain. Mario and Inez would receive the award, since there is no parent-child relationship with Carmelo and Aiesha per UPC 2-119. UPC 2-118 established a parent-child relationship, giving inheritance rights to the adopted parents. (f) Would the results in (a) through (e) be consistent if everything took place in Georgia? (See OCGA 53-1-8 and 19-8-19.) OCGA 53-1-8 states: A decree of adoption, whether issued by a court of this state or by a court of any other jurisdiction, shall have the effect described in Code Section 19-8-19, and the adoptive parents and relatives of the adoptive parents shall likewise be entitled to inherit from and through the adopted individual under the laws of intestacy in the absence of a will and to take as parents or relatives of the parents of the adopted individual under the provisions of any instrument of testamentary gift, unless expressly excluded therefrom. So, yes, the results would remain consistent, as Georgia has adopted the thrust of the UPC approach to adoptive and biological parent-child inheritance. 5. Kristen and Robert, a married couple, have a child, Renesmee, during their marriage. Robert then dies intestate. Two years later, Kristen marries Rupert. Shortly after that, Rupert adopts Renesmee.

(a)

May Renesmee inherit from Roberts estate? Why (not)?

Under UPC 2-119(b), there is an exception made for stepchildren adopted by a stepparent, and Renesmee may inherit from Roberts estate. Renesmee is presumed to be Roberts child since she was born during Robert and Kristens marriage, but it is rebuttable. (b) If Kristen dies intestate, may Renesmee inherit from her estate? Why (not)?

Yes. Maternal paternity is easy to establish here and Kristen never severed any parental ties to Renesmee when Rupert, the stepparent adopted her. (c) If Rupert dies intestate, may Renesmee inherit from his estate? Why (not)?

Yes. Under UPC 2-118, Renesmee may also inherit from Rupert as a parent-child relationship now etsts between an adoptee and the adoptees adoptive parent.