A.

i.

Intestate Succession
1. Testate: dies with Will 2. Intestate: dies w/o will Main Reasons for Intestacy: unpleasantness of confronting mortality, time and costs involved a. State Statute of Descent and Distribution: governs probate of a person who dies intestate i. Disposition of Personal Property: State where decedent was domiciled at death determines distribution ii. Disposition of Real Property: State where real property is located determines distribution

I.

Share of Surviving Spouse i. UPC 2-102: Share of Spouse (1) The entire estate if: (A) no descendant or parent of decedent survives the decedent ; or (B) all of the decedents surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent (2) The first 300,000, plus three fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent (3) The first 225,000, plus one half of any balance of the intestate estate, if all of the decedents surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; (4) The first 150,000, plus one half of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving spouse. ii. NC Rules Governing Intestacy and Share of Surviving Spouse N.C. Gen. Stat. 29-2: Definitions N.C. Gen. Stat. 29-3: Certain Distinctions abolished as to Intestate succession N.C. Gen. Stat. 29-4: Curtesy and Dower Abolished N.C. Gen. Stat.29-5: Computation of Next of Kin; refer to GS 104.A1 N.C. Gen. Stat. 29-6: Lineal Succession Unlimited N.C. Gen. Stat. 29-8: Partial Intestacy: If all property is not disposed of by will N.C. Gen. Stat. 29-12: Escheat N.C. Gen. Stat. 29-13: Descent and Distribution upon intestacy, 120 hour survivorship req. N.C. Gen. Stat. 29-14: Share of Surviving Spouse N.C. Gen. Stat. 29-30:Election of the Surviving Spouse to Take in Lieu of Intestate Share

II.

Share of Descendants I. UPC 2-103: Shares of Heirs other than Surviving Spouse II. N. C. Rules Governing Shares of Descendants

N.C. Gen. Stat. 29-6: Lineal Succession Unlimited N.C. Gen. Stat. 29-15(1)-(2): Shares of Others than the Spouse N.C. Gen. Stat. 29-16(a): Distribution among Classes

I. General Rule: In all jurisdictions in this country, after the spouses share if any is set aside, children and descendants of deceased children take the remainder of the decedents property to the exclusion of everyone else. Children of Deceased: take by representation
Note: Son/ Daughter in Law: are excluded as intestate successors in virtually all states

(1)English Per Stirpes/ Strict Per Stirpes: 1/3 of states follow this method of distribution, This method treats each line of descendants equally (2)Modern Per Stirpes/ Per Capita with Representation: of states follow this method. Whether any children survived the decedent, if so the distribution is identical to English Per Stirpes. If not, the estate is divided equally per capita at the first generation in which there are living takers (3)Per Capita at each Generation: UPC 2-106(b) remaining states follow this method of distribution (about 12). The estate is divided into as many equal shares as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Equally Near, Equally Dear

II.

Negative Disinheritance:

UPC 2-101(B) changes the old rule of law that disinheritance is not allowed in situations of partial intestacy. This UPC provision authorizes a negative will. The barred heir is treated as though he disclaimed his intestate share. N.C. Gen. Stat. 29-6 N.C. Gen. Stat. 29-15(1)-(2) N.C. Gen. Stat. 29-16(a)

III.

Shares of Ancestors and Collaterals:

When intestate decedent is survived by a descendant, the decedents ancestors and collaterals do not take. In of states, when there is no descendant, after deducting the spouses share, the rest of decedents property is distributed to the parents, as under the UPC.

(1) Collateral Kindred: All persons who are related by blood to the decedent but who are not descendants or ancestors are called collateral kindred. (2)First Line Collaterals: Descendants of the decedents parents, other than the decedent and the decedents descendants. IF there is no first line collaterals, then the states differ on who is next in line of succession. Two basic schemes are used: I. Parentelic System: the intestate estate passes to grandparents and their descendants, and if none to great grandparents and their descendants, and so on down the each line (parentela) descended from an ancestor until an heir is found. II. Degree of Relationship System: The intestate estate passes to the closest of kin, counting degrees of kinship. Refer to Table of Consanguity on page 93! (1)Second Line Collaterals: Descendants of the decedents grandparents, other than the decedents parents and their descendants. (2) Laughing Heirs: persons so distantly related to the decedent to suffer no sense of bereavement, laughing to the bank! (3)Half Bloods: Common Law wholly excluded relatives of half blood (half sister) from inheriting. This rule of law has long been abolished in American states. Maj. Of states and under UPC 2-107a relative of half blood is treated the same as a whole blood. Note: There are different rules for FL, TX, OK. (4) General Rule for ALL jurisdictions: IF the decedent is not survived by a spouse, descendant, or parent, intestate property will pass to brothers and sisters and their descendants. N.C. Gen. Stat. 29-5 & 29-7 N.C. Gen. Stat. 29-15(3)-(5) N.C. Gen. Stat. 29-16(b)-(c) N.C. Gen. Stat. 104A-1 N.C. Gen. Stat. 116B-2

B.

Transfers to Children

1) Adopted Children Inheritance rights of an adopted child vary considerably from state to state. However, there are three main views discussed below: a) Hall v. Vallandigham, 540 A. 2d 1162 (1988) I. Rule of Law: The right of inheritance was removed by the legislature in 1963, Upon entry of a decree of adoption the adopted child shall lose all rights of inheritance from its parents and natural collateral or lineal relatives. This disallowed dual inheritance for adoptive children in this state. II. Other states, an adopted child inherits from both adopted parents and genetic parents and their relatives. III. Other states, UPC 2-114(b) (1990) an adopted child inherits from adoptive relatives and also from genetic relatives if the child is adopted by a step-parent. 2008 Amendments to the UPC, significant focus on parent child relationship. If this relationship exists, then the child will take under intestate succession UPC 2-116.

 Regarding Adoption, a parent child relationship exists between an adopted child and the adoptive parent (2-118a) but not between an adopted child and the childs genetic parents (2-119a and this is subjected to several exceptions. Early Rule: Stranger to the Adoption Rule: The adopted child is presumptively barred whatever generic is used, except when the donor is the adoptive parent. 1. Exception: Adopted child might be permitted to take if adopted before, but not after the testators death. 2. Whether an adopted child is included may depend on what the law was at the testators death. Adult Adoption Most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult. Minary v. Citizens Fidelity Bank and Trust Co., 419 S.W. 2d 340 (1967) Facts: Amelia Minary died leaving a residuary trust to her husband and three sons, this trust would terminate upon the death of the last beneficiary. One of the sons adopted his wife in order to recover from his mothers trust. Issue: Did Alfreds adoption of his wife Myra make her eligible to inherit under the provisions of his mothers will? Rule: Adoption of an adult for the purpose of bringing that person under the provisions of a pre existing testamentary instrument should not be permitted. Reasoning: The court weighed the testamentary intent and the strict application of adoption laws (which rule in the favor of Myra). Equitable Adoption Oneal v. Wilkes, 439 S. E. 2d (1994). Issue: Whether the virtual adoption of Oneal from Cook was valid? Holding: No, the paternal aunt who entered into the adoption contract with Cook had no legal authority to do so. Rule: The first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child. Plaintiffs BOP: showing of an agreement bt the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in home of the parents, partial performance by the foster parents in taking the child into the home and treating it as their child, and the intestacy of the foster parent. Sears Dissent: Crawford v. Wilson, 78 S.E. 30, the doctrine of equitable or virtual adoption was recognized for the first time in GA. Rule from Crawford: An agreement to adopt a child, so as to constitute the child an heir at law on the death of the person adopting, performed on the part of the child, is enforceable upon the death of the person adopting the child as to property which is undisposed of by will. Equitable Adoption: permits an adopted child to inherit from foster parents. (Lankford v. Wright, 489 S.E.2d 604 (N.C. 1997) However, foster parents can not adopt from the child bc they failed to in fact adopt the child, they have no claim in equity. Board of Educ. v. Browning, 635 A. 2d 373 (Md. 1994): The court held that an equitably adopted child could not inherit through her adoptive parent to take from her adoptive parents sister even though the sisters estate escheated= this principle is limited to inheritance from parent. Note: Many Courts refuse to apply equitable adoption principles to testate estates. N.C. Gen. Stat. 29-17

2) Posthumous Children Definition: Child was conceived before, but born after, her fathers death. Ancient Rule of Law: Child to be treated as in being at time of conception rather than from the time of birth. Rebuttable Presumption of 280 days: the normal period of gestation is 280 days. If conception is claimed before 280 days then the BOP is on the child. Rebuttable Presumption of 300 days: Uniform Parentage Act 204 establishes a rebuttable presumption of 300 days. N.C. Gen. Stat. 29-9 3) Nonmarital Children Common Law: a child born out of wedlock, was filius nullius, child of no one, and could inherit from neither father nor mother. Only the childs spouse and descendants could inherit from the child. Present Rule: All states now permit inheritance from the mother. Rules regarding inheritance from the father vary. Rules Regarding Inheritance from Father: Most permit paternity to be established by evidence of the subsequent marriage of the parents, by adjudication during the life of the father, or by clear and convincing proof after his death.

N.C. Gen. Stat. 29-17-22 N.C. Gen. Stat. 49-10-14

4) Reproductive Technology Discussion about the difference between Posthumous children (a child en ventre sa mere, born after death of decedent) and a posthumously conceived child (a child en ventre se Frigidaire, born and conceived after the death of decedent) = a nonmarital child even though the childs parents may have been married prior to the childs conception. The United States District Court for the District of Massachusetts certified the question: if a married man and woman arrange for sperm to be withdrawn from the husband for the purpose of artificially impregnating the wife, and the woman is impregnated with that sperm after the man has died, will children resulting from such pregnancy enjoy the inheritance rights of natural children under Massachusetts' law of intestate succession? Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (2002) FACTS: Plaintiff wife gave birth to twin girls. The children were conceived through artificial insemination using her deceased husband's preserved semen. Later, the wife applied for Social Security survivor benefits. Defendant commission denied benefits, concluding, among other things, the children did not qualify for benefits because they were not entitled to inherit from the husband under the Massachusetts intestacy and paternity laws. The wife appealed to the federal court, which certified a question to the state court. The state court advised that to answer the certified question, it must consider whether and to what extent such children could take as intestate heirs of the deceased genetic parent consistent with the purposes of the Massachusetts intestacy statute, Mass. Gen. Laws ch. 190, and not by any assumptions of the common law. Further, the state court indicated the question whether posthumously conceived genetic children could enjoy inheritance rights under the intestacy statute implicated three powerful state interests: the best interests of children, the state's interest in the orderly administration of estates, and the reproductive rights of the genetic parent.

OUTCOME: The state court answered the question as follows: in certain circumstances, a child resulting from posthumous reproduction may enjoy the inheritance rights. These limited circumstances include, inter alia, where it is demonstrated: (1) a genetic relationship exists between the child and the decedent, and (2) the decedent affirmatively consented to posthumous conception and to support of any resulting child. Legislation Regarding Reproductive Technology i) California: Cal. Prob. Code 249.5 (2008) a child of decedent conceived after the death of decedent shall be deemed to have been born in the lifetime of the decedent if (a) the decedent consented in a signed and dated writing; (b) within four months of the decedents death, notice of the possibility of posthumous conception is served upon a person who has the power to control the distribution of decedents property; and (c) the child was in utero within two years of the decedents death and the child is not a clone of the decedent. ii) La. Rev. Stat. 9:391.1 grants posthumously conceived children inheritance rights if born to the surviving spouse within three years of the decedents death. iii) Uniform Parentage Act 707: recognizes inheritance rights for posthumously conceived children if the parent consented to posthumous conception in writing. iv) UPC 72-120 : posthumously conceived child inherits from the deceased parent if (1) during life the parent consented to posthumous conception in a signed writing or consent is otherwise proved by clear and convincing evidence and (2) the child is in utero not later than 36 months or is born not later than 45 months after the parents death. In re Martin B, 841 N.Y.S.2d 207 (2008) Issue: The trustees brought an uncontested application for advice and direction in connection with seven trust agreements to determine if the terms "issue" and "descendants" included children conceived by means of in vitro fertilization with the cryopreserved semen of the grantor's son, who had died several years prior to such conception. OVERVIEW: After the son learned that he had Hodgkins Lymphoma, he deposited a sample of his semen at a laboratory with instructions that it be cryopreserved and that, in the event of his death, it be held subject to the directions of his wife. Thereafter, the wife twice underwent in vitro fertilization with his cryopreserved semen and gave birth to two sons. The trustees brought the proceeding because under the trust instruments they were authorized to sprinkle principal to the decedent's "issue" and "descendants." Therefore, they needed to know whether the son's children qualified as members of such classes. The court found it undisputed that the infants, although conceived after the son's death were the products of his semen. Although it could not be said that the grantor contemplated that his "issue" or "descendants" would include children who were conceived after his son's death, the trust instruments provided that the trust fund would benefit his sons and their families equally. Because the grantor intended all members of his bloodline to receive their share, and pursuant to Domestic Relations Law 73 and EPTL 6.5-7, the infants were "issue" and "descendants" for all trust purposes. OUTCOME: The infants were deemed to be "issue" and "descendants" for all purposes of the trusts. Legislation Regarding Surrogacy i) The law is evolving regarding who is a parent but there is hardly any legislation surrounding parentage in surrogacy matters. ii) In some states: Surrogacy agreements are prohibited or are only enforceable under specified conditions iii) UPC 2-121 (2008): provides that in the absence of a court order to the contrary, the surrogate does not have a parent child relationship with the child unless the surrogate is the childs genetic mother and no one else has a parent child relationship with the child. An

intended parent, has the parent child relationship if they have functioned as a parent of the child within 2 yrs of the childs birth. N.C. Gen. Stat. 49A-1

C.

Advancements

(1) Common Law: any lifetime gift by the decedent to a child was presumed to be an advancement/ prepayment of the childs intestate share. To prevent the application of this doctrine, the child has the burden to prove that the transfer was intended as an absolute gift and was not to be counted against the childs share of the estate. (2) UPC 2-109 (1990): Advancements Note: The UPC changes the common law rule if the recipient does not survive the decedent. In that case, under the UPC the advancement is not taking into account in determining the share of the recipients descendants.

NC 29-21-29

D.

Simultaneous Death

A person succeeds to the property of a decedent only if the person survives the decedent for instant of time. (1) Uniform Simultaneous Death Act (USDA) (1940 rev. 1953): if there is no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. (2) Life Insurance: when the insured and the beneficiary die simultaneously the proceeds are distributed as if the insured survived the beneficiary (3) Well drafted instruments typically require that a beneficiary to survive the donor by a stated period of time (often 30 or 60 days) Janus v. Tarasewicz, 482 N.E.2d 418 (1985). PROCEDURAL POSTURE: Plaintiff mother filed an action against defendants, father, insurer, and administrator, claiming entitlement to the proceeds of her son's life insurance policy. The Circuit Court of Cook County (Illinois) conducted a nonjury trial and thereafter entered a judgment in favor of the father. The mother and the administrator appealed. OVERVIEW: The mother's son and the father's daughter, who were husband and wife, ingested cyanide laced aspirin capsules. The son died shortly after he was admitted to the hospital. The daughter survived on life support systems for two days before she was pronounced dead. The daughter was the primary beneficiary of the son's life insurance policy and his mother was the contingent beneficiary. The insurer paid the proceeds of the policy to the father, as the administrator of his daughter's estate. The mother filed an action contending that there was no evidence that the daughter survived her son and that she was therefore entitled to the proceeds of the policy as the contingent beneficiary. The circuit court found otherwise and entered judgment in favor of the father. The mother and the administrator of the son's estate appealed. The court affirmed, holding that the evidence supported the circuit court's determination that the son predeceased the daughter and, accordingly, that the daughter's estate was entitled to the proceeds of the policy. The court found that the medical evidence demonstrated that the daughter exhibited positive signs of life after the son ceased showing such signs.

OUTCOME: The court affirmed the judgment of the circuit court. N.C. Gen. Stat. 28A-24-1 -5

E.

Bars to Succession

In re Estate of Mahoney, 220 A 2d. 475 (1966). ISSUE: Appellant wife sought review of the decision from the Probate Court for the District of Franklin (Vermont), which granted the estate of her late husband to appellee parents and determined that she could not inherit from her husband because she had been convicted of manslaughter in his death. OVERVIEW: The wife was convicted of manslaughter for killing her husband. The husband died intestate and the probate court determined that it would be unjust to allow her to profit from her husbands death and decreed the residue of his estate to his parents rather than to her as required by Vt. Stat. Ann. ch. 14, 551(2). The wife challenged the decision and the court reversed. There was no statutory basis for depriving the wife of her rights under Ch. 14, 551(2) and the probate court lacked the equitable power to stray from the statutory mandate. The court recognized that the wife should not be permitted to profit from her husband's death if she intentionally killed him and granted the estate administrator 60 days in which to apply to the court of chancery, which had the equitable power to impose a constructive trust on the wife in favor of the parents. Because the manslaughter conviction did not delineate between voluntary or involuntary manslaughter the intentional killing of the husband would have to be proved in the chancery court before a constructive trust could be imposed. If the chancery court's jurisdiction was not invoked within 60 days the wife inherited the property. OUTCOME: The court reversed the judgment granting the husband's estate to his parents rather than his wife and gave the estate administrator 60 days to apply to the chancery court for the imposition of an equitable trust on the wife. RULE: General rules of descent provide that if decedent is married and leaves no issue, then his surviving spouse shall be entitled to the whole of the decedents estate if it does not exceed 8000. Only if the decedent leaves no surviving spouse or issue does the estate descend in equal shares to the father or mother. RULES Regarding Slayer: 1) Legal Title will pass to slayer bc denial of inheritance would be an additional punishment for his crime not provided by statute, and would violate the constitutional provision of corruption of blood. 2) Legal title will not pass to the slayer because of the equitable principle that no one should be permitted to profit by his own fraud. 3) Legal title passes to slayer but equity holds him to be a constructive trustee for the heirs or next of kin for the decedent. A. UPC 2-803: bars the killer from succeeding to non probate as well as probate property. Killer can not benefit from his wrong. This statute provides that the killer is treated as having disclaimed the property and under the UPC disclaimer statute 2-1106 (2002) the disclaimant is treated as having died immediately before the time of distribution. UPC 2-803 (g) provides that a final criminal conviction is required to be deemed a slayer or upon acquittal, a showing under the preponderance of the evidence that the individual would be found criminally liable for the killing.

B.

State Law: California, Rhode Island, and VA extend the bar by statute to the killers descendants. Other states limit the rights of the killers descendants to take by case law.

N.C. Gen. Stat. 29-10-11 N.C. Gen. Stat. 31A-1-12.1, 15 N.C. Gen. Stat. 64-1-5

F.

Disclaimer/ Renunication

Definition: Sometimes an heir or devisee will decline to take the property, a refusal. Most common motivations: are to reduce taxes or keep property from creditors. A. Common Law: when a person died intestate, title to real and personal property passed as a matter of law and a successor could not prevent this passing. If the heir refused, this renuniciation was treated as though title had passed to the heir and then from the heir to the next intestate successor. B. State Legislation: To eliminate the difference between disclaiming an intestate share and a devise, almost all states have enacted disclaimer legislation that provides that the disclaimant is treated as having died before the decedent or before the time of distribution. 1) Saving Estate Taxes : o Most states disclaimer statutes req. that a disclaimer be made within 9 months of the creation of interest being disclaimed o Uniform Disclaimer of Property Interests Act: UDPIA (1999 rev 2006)= absorbed into UPC 2-1101 UPC 2-1107= adopted by 1/3 of states and does not contain a time limit 2) Avoiding creditors: most disclaimer statutes provide that a disclaimer relates back for all purposes to the date of the decedents death= relation back doctrine. UPC2-1106 (b)1 o Drye v United States, 528 U.S. 49 (1999) Issue: Whether Dryes disclaimer was effective to pass the property to his daughter free from the federal tax lien? Holding: No, his disclaimer did not protect the property from being subject to tax liens bc the court held that the inheritance property or rights to property belonging to him was within the meaning of the internal revenue code and subject to tax liens. N.C. Gen. Stat. 31B-1-4

IV.

Wills
A. Capacity and Will Contest

Mental Capacity: The tests for mental capacity are minimal. To be competent to make a will the testator must (1) Be an adult (18 or older) and (2)must be capable of knowing and understanding in a general way: 1. The nature and extent of his or her property 2. The natural objects of his or her bounty, and 3. The disposition that he or she is making of that property and must also be capable of 4. Relating these elements to one another and forming an orderly desire regarding the disposition of the property NOTE: This test is one of CAPABILITY, and NOT ACTUAL KNOWLEDGE!!!!! o Ex. a reasonable mistake about who is alive in your family will not be enough to render you mentally incompetent Nor must the testator be of avg. intelligence, as this would incapacitate half of the population In most states capacity to make a will is governed by a different legal test and req. less mental ability than to make a contract or to complete an irrevocable lifetime gift.

To make an irrevocable lifetime gift, not only must one have the capacity to make a will, but one must also be capable of understanding the effect that the gift may have on the future financial security of the donor and anyone who may dependent on the donor. In re Estate of Washburn, 690 A.2d 1024 (1997) Facts: Katherine Washburn executed three wills. Expert testimony revealed that testatrix was suffering from alzheimers disease at the time of the execution of the April 13th, 1992 will which resulted in the inability to recollect the property and decipher whom it she be allotted to upon her death. Issue: Did the testratrix have the mental capacity to execute the April 13th, 1992 will? Holding: The testatrix lacked mental capacity to necessary to execute a will. Rule of Law: The court has long held that every person is presumed to be sane, until there is some evidence shown to rebut that presumption, however when there is a evidentiary showing that testamentary intentions of the testator were unclear and fluctuated then the court will most likely rule in favor of the petitioner. Wilson v. Lane, 614 S.E.2d 88 (2005) Facts: Various witnesses including decedents attorney testified that Greer was mentally competent. Issue: Was Greer mentally competent when executing her will devising her property between 17 named inviduals, all were family members, except for one person who was her caretaker? Holding: There was no evidence to show that Greer lacked testamentary capacity. The law does not withhold from the aged, feeble, the weak minded, the capricious, the notionate, the right to make a will, provided such person has a decided and rational desire as to the disposition of his property.See Hill v. Deal, 193 S.E.858, 861 (Ga. 1937) Reasoning: eccentric habits and absurd beliefs do not establish testamentary incapacity MDs testimony was not enough: vague reference to senile dementia cannot eliminate testamentary capacity Rule of Law: A person is mentally capable of making a will if she has sufficient intellect to enable her to have decided and rational desire as to the disposition of her property. Evidentiary Burden: Minority rule: exemplified in Washburn case: BOP or Burden of Persuasion on proponent to show testamentary capacity Majority Rule: once the proponent adduces prima facie evidence of due execution, the party contesting the will on the grounds of lack of capacity has the BOP. UPC 3-407 o Insane Delusion Definition: is a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief. A mistake is susceptible to correction if the testator is told the truth. Explanation of Definition: a delusion is a false conception of reality, not a psychiatric but legal concept whereas the testator adheres against all evidence and reason to the contrary. A person may have mental capacity to execute a will but be suffering from an insane delusion so as to cause a will to fail for lack of testamentary capacity. If an insane delusion is shown but it did not affect the dispositions, then the will stands. Focus on causation! 1. Maj. View: a delusion is insane even if there is some factual basis for it if a rational person in the testators situation could not have drawn the conclusion reached by the testator. 2. Min. View: if there is any factual basis at all for the testators delusion, it is not deemed insane. In re Strittmatter, 53 A. 2d 205 (1947) Facts: Testatrix suffered from paranoia and a type of split personality. No evidence of change in her condition over the years. She demonstrated incontrovertably her morbid aversion to men and feminism to a neurotic extreme. Issue: Whether Miss Strittmatters will was a product of her insanity?

Holding: Yes, the court held that it was her paranoic condition, especially her insane delusions about the male which led her to leave her estate to the National Womens Party. Breeden v. Stone, 992 P.2d 1167 (2000) Facts: This contest involves a holographic will executed by decedent, whom died by a self inflicted gun shot wound after he was involved in the hit and run accident that killed another driver. Before his suicide, he left a handwritten note on his desk devising basically all personal property to his friend Sydney Stone. Issue: Whether Spicer Breedens holographic will was invalid based on insane delusions when he suffered from depression and was frequently was under the influence of drugs and alcohol? Holding: No, petitioners did not prove that Breeden did not lack testamentary capacity or sound mind based on his alcohol/drug usage and depression. BOP: the contestant must prove a lack of testamentary capacity, including a lack of sound mind, by a preponderance of the evidence. What constitutes sound mind, two test: A. Cunningham Test: The court held that mental capacity to make a will req.that: 1. Testator understands the nature of her act 2. She knows the extent of her property 3. She understands the proposed testamentary disposition 4. She knows the natural objects of her bounty and 5. The will represents her wishes B. The Insane Delusion Test: the contestant must show that (1) testator labored an insane delusion and (2) the will or some part of the will was part of that insane delusion. BOP: on party asserting that testator was suffering from insane delusion Causal relationship standard: necessary between an individuals insane delusion and his capacity to contract derived from the Hank case. Insanity does not make one incompetent to contract unless the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction. Rule: There must be an inquiry as to whether the delusion materially affects the contested disposition of the will and if the delusion materially affects the contested will, then the will is deemed invalid. Note: not all insane delusions materially affect the will!!!! Dead Man Statutes Min of States: prohibit testimony by an interested party of a decedents oral statement in support of a claim against the estate. Reasoning/ Purpose: To protect the estate of decedent from false claims after the decedents lips are sealed. Undue Influence Definition: coercion, basically when a testator is coerced into doing that which he or she does not desire to do Evidence: Proof may be wholly inferential or circumstantial, usually circumstantial evidence used and if sufficient the court will infer a presumption of undue influence that is triggered by evidence of a (1) confidential relationship and usually at least one other factor, sometimes showing of suspicious relationship (R3d 8.3 cmt. h) See Estate of Lakotosh, 656 A. 2d 1378 (1994) and then the BOP shifts to the proponent to rebut the presumption. Rebuttal is shown by clear, satisfactory, and convincing evidence that the grantee acted in good faith throughout the transaction and the grantor acted freely, intelligently and voluntarily. BOP: Contestant must prove: (1) the donor was susceptible to undue influence (2) the alleged wrongdoer had an opportunity to exert the undue influence (3) the alleged wrongdoer had a disposition to exert undue influence and (4) there was a result appearing to be the effect of the undue influence.

Purpose: Protects against overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongdoing based on age, inexperience, dependence, physical, or mental weakness. Rule: R3d of Property: Wills and other donative transfers (2003) 8.3 (a) a donative transfer is invalid to the extent that it was procured by undue influence, duress or fraud. (b) a donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donors free will and caused the donor to make a donative transfer that the donor would not have otherwise made. NOTE: Capacity case= assessment of the testators status vs Undue Influence case = an assessment of conduct Estate of Lakotosh, 656 A.2d 1378 (1994) Rule of Law: Burden of proof may be shifted so as to require the proponent to disprove undue influence. To do so contestant must prove by clear and convincing evidence that (1) there was a confidential relationship (def: embraces three distinct and sometimes overlapping relationships- fiduciary, reliant, or dominant-subservient) (2) that the person enjoying such relationship received the bulk of the estate and (3)that the decedents intellect was weakened. Holding: The power of an attorney in and itself was sufficient for a finding that a confidential relationship existed, triggered presumption of undue influence and BOP shifted to proponent to rebut. In re Moses, 227 So. 2d, (1969) Facts: Mrs. Moses was married three times before, all previous husbands died. During 2nd marriage she met attorney, Holland who was 15 yrs younger than her and they had a relationship. Moses suffered from alcoholism and depression. Three yrs. Before her death she went to another attorney and executed a will that devised a large portion of her estate to Holland. Issue: Was Moses will invalidated by undue influence of Holland? Holding: Yes, based on the presumption of undue influence based on the confidential relationship between Holland and Moses (attorney client) even though Holland was unaware of Moses bequest and will execution. Rule of Law: Confidential relationships give rise to the presumption of undue influence , rebuttal will not be achieved by a showing that the confidential relationship did not in fact interfere with the actual drafting of the will (based on the other attorneys drafting) Reasoning: Because the other attorney did not advise Mrs. Moses regarding her will and blood relatives and the relation of Mr. Holland the rebuttal was not met. Lipper v. Weslow, 369 S.W.2d 698 (1963) Facts: Defendant Lipper was the son of the decedent and executed the will for the decedent. His share was increased in the execution of the will and his half brother and his descendants were disinherited in the execution of this will. The descendants of his dead half brother are contestants in this matter and claim undue influence. Issue: Did the confidential relationship of Mr. Lipper as the son, the lawyer, executor of estate in some way cause undue influence upon the testatrix? Holding: (Min. of States): No, the confidential relationship and suspicious circumstance was proven however the contestants did not prove that the will as written resulted from Defendant Lipper substituting his mind and will for that of the testatrix. Note: attorney-client relationship raises the presumption in most states except when the attorney is related to the testator. Rule of Law: The test of undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control. No Contest Clause:

a clause provides 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. 1. Majority of states: enforce a no contest clause unless there is probable cause for the contest. UPC 2-517 2. Indiana and FL: Do not enforce no contest clauses at all Note: There are subtle differences in the application of law state by state. Precautionary Measures in the Expectation of Will Contest: 1. Explanation in Will 2. Letter to the Lawyer setting forth dispositions and explanation 3. Video discussion of Testators intent: practical experience= sometimes helpful and sometimes not 4. Hold a family meeting before death of testator to explain rationale for will 5. Professional examination of clients level of capacity 6. No contest clause: only effective if contestant has a bequest 7. Instead of Will execute an inter vivos trust: easier to keep from other family members Fraud Occurs where the testator is deceived by a deliberate misrepresentation and does that which he would not have done had the misrepresentation not been made. Misrepresentations must be made with both the (1) intent to deceive the testator and the (2) purpose of influencing the testamentary disposition. Remedies: 1. Strike the portion of the will directly affected by the fraud 2. The will may be probated and then a court with equity powers can impose a constructive trust on one or more of the beneficiaries to remedy any unjust enrichment caused by the fraud Types of Fraud: 1. Fraud in the inducement: occurs when a representation causes the testator to execute or revoke a will, to refrain from executing or revoking the will or to include particular provisions in the wrongdoers favor. Invalid only if the testator would not have left the bequest had testator known the true facts. Ex. when O convinces D not to devise to A bc O assures that he will convey property to A and knows that he has no intention of doing so. 2. Fraud in the execution: occurs when a person intentionally misrepresents the character or contests of the instrument signed by the testator, which does not in fact carry out the testators intent. Ex. D has bad eyesight. D asks O to bring will so that she can sign it. However, O brings D a document that he knows is not the correct will to sign

Duress When undue influence becomes overtly coercive. If the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not have otherwise made. R3d 8.3 Latham v. Father Divine, 85 N.E.2d 168 (1949) Facts: Decedent left entire estate to leader of religious cult. Decedent expressed desire and contacted attorneys in regards to drafting the will however, for some reason (P claims duress and threats of Defendants) did not execute the will before her death. Rule of Law: where a legatee has taken property under the will, after agreeing outside the will to devote that property to a purpose intended and declared by the testator, equity will enforce a constructive trust to effectuate that purpose, lest there be a fraud on the testator.

Constructive Trust: is an equitable remedy that is sometimes said to be a fraud rectifying trust Tortious Interference with Expectancy Tort law that recognizes intentional interference with an expected inheritance or gift as valid cause of action. BOP: Plaintiff must show that the interference involved conduct tortious in itself such as, fraud, duress, or undue influence. TIE can not be used in conjunction with challenge based on testators mental capacity. Analysis should be directed toward the Testator. SOL: is based on tort law, starts running on the action at the time the plaintiff discovered or should have discovered the fraud NOTE: This is NOT a WILL CONTEST! But an action to recover from a third party (punative damages) for misconduct. Schilling v. Herrera, 952 So.2d 1231 (2007) Facts: Herrera was caretaker of decedent in the latter years of her life. Brother of Decedent challenges probate based on theory of TIE. Elements of Intentional Interference with an Expectancy: 1. The existence of an expectancy 2. Intentional interference with the expectancy through tortious conduct 3. Causation and 4. Damages Rule from Case: Exception to the General Rule: is that if the defendants fraud is not discovered until after probate then the plaintiff is allowed to bring a late action for damages since relief in probate was impossible and the circumstances surrounding the tortious conduct effectively preclude an adequate relief in probate court.

B.

Will Execution

Introduction N.C. Gen. Stat. 31-3.1-2 N.C. Gen. Stat. 31-46 Attested Wills: Execution Requirements Purposes of Will Formalities 1. Finality of intention to transfer: The court needs to be convinced that the statements of the transferor were deliberately intended to effectuate a transfer 2. Ritual Function : require the performance of some ceremonial 3. Evidentiary Function : emphasize the purpose of supplying satisfactory evidence to the court 4. Protective Function : safeguarding the testator 5. Channeling Function: recording in a standardized form following the wills act The basic formalities of a will: 1. Writing 2. Signature of Testator (testator is permitted either to acknowledge his prior signature to both witnesses at the same time or to sign the will before both witnesses), and 3. Attestation by witnesses UPC 2-502: Execution; Witnessed or Notarized Wills; Holographic Wills Stevens v. Casodorph, 508 S.E.2d 610 (1998) Facts: Stevens went to the bank to execute his will. However, after signing his will in the presence of Ms. Wauley, Wauley took the will to two other witnesses who signed the will wo seeing Mr. Stevens sign the will.

Issue: whether the signature of the two witnesses outside the presence of the testator validated the will. Holding: No, the witnesses did not sign in the presence of the testator and the testator did not sign in the presence of the witnesses. Rule: The signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time. Definition of Presence: 1. Line of Sight Test: Testator does not have to actually see the witnesses sign but must be able to see them were the testator to look. 2. Conscious Presence Test: The witness is in the presence of the testator if the testator, through his sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing Note: UPC 2-502(a) dispenses with the requirement that the witnesses sign in the Testators presence Definition of Signature: UPC 5-502(a): requires a signature 1. Signature by mark, with assistance, or by another: preferable to a full signature however, a mark, cross, abbreviation or nickname can be sufficient. Note: Godfrey Case: Computer signature was held to be valid signature 2. Order of signing: The testator must sign or acknowledge the will before the witnesses attest, but if they all sign as part of a single or continuous) transaction, the exact order of signing is not critical. 3. Subscription: few states have adopted this req. that the testator sign the will at the foot or end of the will. 4. Delayed attestation: occurs when witness actually sees testator sign the will however, witness does not immediately sign. UPC 2-502 (a)(3)(a): the witness must sign within a reasonable time(could be after the testators death), NY law: 30 days Meaning of Writing 1. A will need not be on paper, all that is req. is a reasonable record of the markings that make up a will. Disinterested Witnesses: Estate of Morea, 645 N.Y.S.2d 1022 Rule: an attesting witness to a will to whom a beneficial disposition is made is a competent witness who can be compelled to testify with respect to the execution of such will but that the disposition to the attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder. Reasoning: there must be at least two disinterested witnesses, and if there is one interested witness that does not benefit from signing the will his signature is valid. Min. of states: Do not require witnesses to be disinterested following UPC 2-505(b). Note: Recommended Method of Executing a Will Lawyer should not rely on the formalities of one state when executing a will bc the clients will may be offered for probate in another state Applicable Law: See UPC 2-506 (1990) 1. Personal Property: The law of decedents domicile at time of death determines the validity of the will 2. Real Property: the law of the state where real property is LOCATED Execution: 1. Make sure all pages are fastened together securely, and the specify the exact number of pages 2. Lawyer confirms testator has read the will and understands its contents

3. The lawyer, testator, and two (three in Louisianna) disinterested witnesses and a notary public are brought in one rm from which everyone else is excluded , rm door closed, until completion of ceremony 4. The lawyer asks testator three ?s: Testator must answer all with yes, in a voice that can be heard by witnesses and notary. It is not necessary or customary for the witnesses to know the terms of the will. a. Is this your will? b. Have you read it and do you understand it? c. Does it dispose of your property in accordance with your wishes? 5. The lawyer asks the testator: Do you request ___, ___, and ____ to witness the signing of your will? 6. The witnesses should be standing or sitting so that all can see the testator sign. Refer to pg. 244 for other steps regarding ceremonial procedures! Self Proving Affidavit: UPC 2-504 authorizes two types of self proving affidavits. 1. One Step Self Proving Affidavit: combined attestation clause and self proving affidavit (witnesses and notary sign only once) 2. Two Step Self Proving Affidavit: separate affidavit, the affidavit must be signed by testator and witnesses in front of notary after the signing of the will. UPC 3-406(1): if a will is self proved, questions of due execution may not be contested unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.

Curative Devices Courts have occasionally excused or corrected an obvious execution defect to avoid denying probate to a will that manifestly represents the true testamentary intent/ wishes of the decedent. Note: Some cts. require strict compliance with the wills act and will not apply these principles. 1. Substantial Compliance Doctrine: the court may deem an effectively executed will as being in accord with the statutory formalities if the defective execution nonetheless fulfills the purposes of those statutory formalities. 2. Harmless Error Rule (AKA: Dispensing Power): the court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will. UPC 2-503 In re Pavlinkos Estate, 148 A.2d 528 (1959) Facts: Husband and Wife mistakenly signed each others wills by accident. Rule: Court declined to adjust or alter the will even though there was a known testamentary intent to do otherwise and req. strict compliance with the formalities of the wills act. In re Snide, 418 N.E.2d 656 (1981). Facts: Husband and Wife mistakenly signed each others wills by accident. Rule: The court adjusted the will based on testamentary intent of the parties based on the genuine mistake of the parties did not req. strict compliance with the wills act. Substantial Compliance: In re will of Ranney, 589 A. 2d 1339 (1991) Facts: Witnesses did not sign the attestation form and the self proving affidavit. No two step process was administered. Issue: Did the parties substantially comply with the Wills Act?

Conclusion: the court was reluctant to validate the execution of the will based on one signing when the statute requires two based on the wills formalities act without the inquiry of whether the testimony deemed that the witnesses substantially complied. Rule: when formal defects occur, proponents should prove by clear and convincing evidence that the will substantially complies with statutory req. Finding of a formal defect should lead not to automatic invalidity, but to a further inquiry does the non-complying document express the decedents testamentary intent, and does the form sufficiently approximate will act formality to enable the court to conclude that it serves the purposes of the wills act? Harmless Error In re Estate of Hall, 51 P. 3d 1134 (2002) Facts: Betty and Jim Hall prepared a joint will however, they did not formally execute the new will. Jim directed Betty to destroy the original will and it was deemed his intention to have the joint will admitted to probate and to revoke the original will. Issue: Whether the harmless error of Jim and Betty to execute the joint will prevents the administration of the will? Holding: No, the harmless error of Jim to formally execute his will did not prevent its admittance into probate. Rule: Under the harmless error doctrine, the document may still be treated if it had been executed under certain circumstances. One such circumstance is if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to be the decedents will. Note: Notarized Wills UPC 2-502(a)(3): provides that a will is valid if it is signed by two witnesses or by a notary. Some states have held that notary can count as one witness but you still need a total of two Some states have held absent intent of notary to be a witness, you need two other people to witness UPC 2-503 Holographic Wills Definition: Is a will by testators hand and signed by the testator; attesting witnesses are not required. Authorized by: UPC 2-502(b) Note: Holographic wills are not recognized in the majority of states, and for some decisions , in states recognizing them, requiring the most precise compliance with specified formalities (NC recognizes) Kimmels Estate, 123 A. 405 (1924) Facts: Father sent letter to sons regarding the distribution of his estate upon his death. Issue: Is the paper testamentary in character? Second, is the signature to it a sufficient compliance with our wills act? Holding/ Rule: Yes, the court has previously held that deeds, mortgages, letters, powers of attorneys, agreements, checks, notes, a letter of instructions, and informal letter of requests were wills and his intent was evident from this writing. N.C. Gen. Stat. 31-3.4-5 N.C. Gen. Stat. 31-18.2-3 Conditional Wills 1. Most likely executed: The cts. presume that the language of condition does not mean that the will is to be probated only if the stated event happens but is, instead, merely a statement of the inducement for execution of the will, which can be probated upon death from any cause.

2. Not usually executed: When a statement expresses a motive or reason for drafting the will rather than a contingency upon which the will was based. Note: Sometimes Holographic wills are written in extremis: Ex. Husband trapped under tractor scratched holographic will onto tractor with knife before death and this was admitted. The Validity of Holographic Wills on Preprinted Forms: If a testator writes will by hand on a typed or preprinted will form but fails to have the form properly attested then the instrument fails as a formal will. To be deemed a valid holographic will, (1) it must be handwritten by Testator and (2) signed by Testator(most states say anywhere on the face of the document suffices). Whether it will be deemed holographic depends on how much of the will was handwritten. However, cts are split on their application. 1. First Generation Statutes: req. that the document be entirely written, signed and dated by the testator 2. Second Generation Statutes (1969 UPC): req. that material provisions be in the handwriting of the testator (signature +material provisions only) 3. Third Generation Statutes (1990 UPC): material portions and extrinsic evidence allowed to establish testamentary intent. Some cts. have held that testamentary intent was clear and this was a valid holographic will Some cts. have ignored the preprinted words and decided based on the handwritten words, taken alone, fulfill the requirements of a holographic will. Estate of Gonzalez, 855 A.2d 1146 (2004) Rule: A holographic will is one where a signature and the material provisions are in the handwriting of the testator. Holding: The preprinted will form filled in by the testator was deemed a valid holographic will because when read with the preprinted words the document exemplifies a valid statement of testamentary intent. In re Estate of Kuralt, 15 P.3d 931 (2000) Facts: Kuralt had a wife and children. However, unbeknownst to them he had a mistress and another life whereas he supported the mistress and her children for a series of years and before death attempted to devise a certain track of land to this mistress. However, he had not yet transferred this parcel of land before death but sent letters indicating his intent to do so. Rule of Law: The provisions of a letter may be deemed a showing of testamentary intent and may be deemed to equal a holographic will and a codicil to a validly executed will when evidence proves testamentary intent of Testator. Definition of Codicil: a testamentary instrument that amends a prior will but does not replace it.

C.

Will Revocation

A will is an ambulatory document , which means that it is subject to modification or revocation by the testator during her lifetime. All states permit revocation of will in one of two ways: Revocation by Writing or Physical Act 1. By a subsequent writing executed with testamentary formalities or, 2. By a physical act such as destroying, obliterating, or burning the will. Note: Oral revocation alone is not enough to be a valid revocation! UPC 2-507: Revocation by Writing or a Physical Act Harrison v. Bird, 621 So. 2d 972 (1993)

Rule: Presumption of Revocation may exist when there is evidence that attorney destroyed Decedents will, outside of Decedents presence, and the pieces of the will were not found with personal effects at death. BOP shifts after presumption is made to the proponent to prove there was no revocation of the will. Some states require clear and convincing evidence and some require preponderance of the evidence standard. NOTE: In absence of a statute to the contrary, a will that is lost, destroyed without the consent of the testator, or destroyed with the consent of the testator but not in compliance with the revocation statute can be admitted into probate if its contents are proved (by copy in lawyers office or clear and convincing evidence) MIN. RULE: In a few states, statutes prohibit the probate of lost or stolen wills unless the will was in existence at the testators death or was fraudulently destroyed during the testators life. Thompson v. Royall, 175 S.E. 748 (1934) Issue: Whether the will of Mrs. M. Lou Bowen Kroll had been revoked shortly before death? Holding: No, the attempted revocation is not valid bc testratrix attempted to revoke will with subsequent writings not executed as required by statute. Rule: No will or codicil, or any part thereof, shall be revoked, unless by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is req. to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating canceling, or destroying the same, or the signature thereto, with the intent to revoke. NOTE: This case would have been diff. if UPC 2-507 (a)(2) would have been applied it allows for cancellation regardless of whether the cancellation touches any words on the will. N.C. Gen. Stat. 31-5.1 PARTIAL REVOCATION by physical act: 1. Maj: UPC 2-507: authorize partial revocation by physical act 2. Min: will cannot be revoked in part by an act of revocation, it can be revoked in part only by a subsequent instrument. Two reasons for prohibiting partial conduct: 1.Canceling a gift to one person results in the gift or benefit of another person which can only be done by attested writing 2.Permitting this allows an opportunity for fraud, the person who takes the new gift may be the one who made the canceling marks. Note:If partial revocation by act is not recognized, the will must be admitted to probate in the form which it was originally executed if the original language can be ascertained.

Dependent Relative Revocation and Revival If the testator purports to revoke his will upon a mistake assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth. The underlying theory is that the testator lacks true revocatory intent if the revocation was based on a mistaken belief. The doctrine is one of presumptive intent not actual intent. Lacroix v. Senecal, 99 A.2d 115 (1953) Rule: Where the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective

DRR applies only: (1) where there is an alternative plan of disposition that fails, or (2) where the mistake is recited in the terms of the revoking instrument or possibly, is established by clear and convincing evidence. -usually in the form of another will either duly or effectively executed, This doctrine limits the amount extrinsic evidence that can be used Estate of Auburn, 118 N.W. 2d 919 (1963) Rule: It is held that the destruction of a later document is intended to be conditional where it is accompanied by the expressed intent of reinstating a prior will and when there is no explanatory evidence. Of course, If there is evidence that the Testator intended the destruction to be absolute(and no intention for the prior will to be admitted into probate), there is no room for application of DRR. REVIVAL of Will: 1. Common Law: Will #1 is not revoked unless will #2 remains in effect until the testators death. 2. Maj.: assumes that will #2 legally revokes will #1 at the time will #2 is executed. However, upon revocation of #2, will #1 is revived if the testator so intends. Intent may be shown by the circumstances surrounding revocation and oral declarations. 3. Min: revoked will cannot be revived unless re-executed with testamentary formalities or republished by being referred to in a later duly executed testamentary writing. 4. UPC 2-509: nearly half of states have adopted 2-509 (a) if a subsequent will that wholly revoked the previous will is itself revoked by a physical act, the presumption is that the previous will remains revoked. 2-509 (b) if a subsequent will that is partly revoked the previous will is itself revoked, the presumption is that the previous will is revived. N.C. Gen. Stat. 31-5.8 Revocation by Operation of Law 1. Maj: A divorce revokes any provision in the decedents will for the divorced spouse. 2. Min: revocation occurs only if divorce is accompanied by a property settlement. Only usually apply to wills, not life insurance policies, pension plans or non probate transfers. 3. UPC 2-804 applies to non probate transfers as well as wills. Governing instrument= deed, will, trust, insurance or annuity policy, account with a payable on death designation, pension plan, or similar non probative donative transfer. N.C. Gen. Stat. 31-5.3-5 Marriage: if the Testator executes his will and subsequently marries Maj: give the spouse his/her intestate share, unless it appears from the will that the omission was intentional or spouse is provided for in the will or by a will substitute with the intent that the transfer be in lieu of testamentary provision. See UPC 2-301: revokes the will to the extent of the spouses intestate share Min: a premarital will is revoked entirely upon marriage Birth of Children: Common Law: marriage followed by birth of children revokes a will executed before marriage.

Maj: have pretermitted child statutes(some include children born before and after execution of will), giving a child born after the execution of a parents will, not mentioned in the will, a share in the parents estate. If applicable, results in a revocation of the parents will to the extent of the childs share. See UPC 2-302

D.

Will Components

Integration of Wills All papers present at the time of execution, intended to be part of the will, are integrated into the will. Republication by Codicil Publication of a will is the testators statement to the witnesses, by words or by action that a document is the testators will. Under Doctrine of Republication by Codicil, a will is treated as re-executed (re published) as of the date of the most recent codicil. Doctrine is not automatically applied, only where updating the will carries out the Testators intent, though sometimes courts have ignored this qualification. Major Diff.: Republication by Codicil vs. Doctrine of Incorporation by Reference: is that republication only applies to a prior validly executed will, whereas incorporation by reference can apply to incorporate into will language or instruments that have never been validly executed. Incorporation by Reference UPC 2-510 UPC 2-513 Separate Writing identifying devise of certain types of Tangible Property N.C. Gen. Stat. 31-47 Clark v. Greenhalge, 582 N.E.2d 949 (1991) Issue: Whether a probate judge correctly concluded that specific, written bequests of personal property contained in a notebook maintained by a testatrix were incorporate by reference into the terms of the testatrixs will? Holding: Yes Rule: a properly executed will may incorporate by reference into its provisions any document or paper not so executed and witnessed, whether the paper referred to be in the form of .. a mere list or memorandum,. If it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referenced to therein. The intention of the testator shall prevail if consistent with the applicable rules of law Reasoning: It appears clear that Helen intended by the language used in Article 5th of her will to retain the right to alter and amend the bequests of tangible personal property in her will, without having to amend the formally the will through documentation in her notebook. Johnson v. Johnson, 279 P.2d 928 (1954) Def. of Codicil: is a supplement to, an addition to or qualification of, an existing will, made by the testator to alter, enlarge, or restrict the provisions of the will, to explain or republish it, and it must be testamentary in character. Rule: The general principle of law is that a codicil validly executed operates as a republication of the will no matter what defects may have existed in the execution of the earlier document, that the instruments are incorporated as one, and that a proper execution of the codicil extends also to the will. Holding: That there were two wills written on the same page, and that the second will (a handwritten codicil) incorporated by reference the first will (the typed will).

Acts of Independent Significance (AKA: Doctrine of Non-testamentary acts) UPC 2-512: Event of Independent Significance If the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld under this doctrine. Another doctrine permitting extrinsic evidence to identify the will beneficiaries or property passing under the will This will be true even if the phrasing of the will leaves it in the testators power to alter the beneficiaries or the property by a non testamentary act

E.

Interpretation and Construction of Wills

Goal in construing wills is to give effect to the testators intent. Mistaken or Ambiguous Language in Wills Majority of Jurisdictions still follow two rules that bar the admission of evidence to vary the terms of the will: 1. Plain Meaning Rule/ No extrinsic Evidence Rule: extrinsic evidence may be admitted but cannot be entered to disturb or contradict the plain meaning of the words in the will 2. No Reformation Rule: equitable remedy that would correct a mistaken term in a will to reflect what the testator intended the will to say N.C. Gen. Stat. 31-41 Mahoney v. Grainger, 186 N.E. 86 (1933) Rule: There must be a latent ambiguity or equivocation (when testamentary language is not clear) in the will itself which would permit the introduction of statements of the testatrix to prove her testamentary intention. A will duly executed and allowed by the court must under the statute of wills be accepted as the final expression of the intent of the person executing it. Two types of Ambiguities: 1. Patent Ambiguity: appears on the face of the will 2. Latent Ambiguity: manifests itself only when the terms of the will are applies to the testators property or designated beneficiaries (oral declarations of intent to the scrivener are admitted in most jurisdictions to clear up latent ambiguity) a. Equivocation: Occurs when a will clearly describes a person or thing, and two or more persons or things exactly fit that description (direct expressions of the testator are admissible) i. Personal usage exception: if the extrinsic evidence shows that the testator always referred to a person in an idiosyncratic manner, the evidence is admissible to show that the testator meant someone other than the person with the legal name of the legatee b. Exists when no person or thing exactly fits the description, but two or more persons or things partially fit that description (more common) Note: Collapsing the patent/ latent distinction: the determination bt the two is often a subjective undertaking and the relevance of distinction has begun to fade. RULE: Once an ambiguity, patent or latent, is established, direct as well as circumstantial evidence of the donors intention may be considered in resolving the ambiguity in accordance with the donors intention.

Correcting Mistakes without the power to reform wills: In addition to resolving latent &
patent ambiguities, there is a trend towards adjusting wills to correct mistaken terms to conform the will to the actual intent of the testator. The Causes and Effects of Will Defects Cause: Intentional Wrongdoing Cause: Innocent Acts Effect: Lack of Volition Undue Influence, Duress (relief granted) Lack of capacity, Insane Delusion (relief granted) Effect: Mistaken Terms Fraud (relief granted) Mistake (no relief)

Arnheiter v. Arnheiter, 125 A. 2d 914 (1956) Facts: Guterl devised a piece of property on Harrison Ave, NJ. However, testatrix did not put the right street number of the property in her will. Testator put 304 instead of 317 in her devise. Issue: Whether the court can correct an obvious mistake in the will? Holding: No reformation is not applicable, however the plaintiffs can seek recourse under another method. RULE: Under the principle of falsa demonstration non nocet (mere erroneous description does not vitiate) this allows less essential particulars may be rejected provided the remainder of the description clearly fits. Openly reforming wills for a mistake: Erickson v. Erickson, 716 A.2d 92 (1998) Issue: Whether the trial ct. should have allowed the submission of extrinsic evidence regarding the decedents intent that his will would not be revoked automatically by his subsequent marriage? Holding: No, the trial ct should not have admitted the will bc there was no language in the will providing for the contingency of marriage therefore no ambiguity to resolve. However, the trial ct. improperly excluded evidence of mistake that if believed, would permit a finding that the will provided for the contingency of marriage. Dissent: Extrinsic evidence should be admissible to establish the decedents true intent. UPC 2-805: Reformation to Correct Mistakes This statute allows the reformation absent ambiguities if shown by clear and convincing evidence of transferors intent (re: mistake). Reasons for adjustment to the No- reformation rule and fixing of mistakes: 1. The rise of the non probate system 2. Experience in other jurisdictions 3. Growing embarrassment that failure to cure well proved mistakes inflicts unjust enrichment; and 4. Concern to spare lawyers from needless malpractice liability Death of Beneficiary before Testator: Lapse I. Lapse: If a devisee does not survive the testator, the devise lapses (it fails); It is a requirement that all gifts given by will are subject to a devisee surviving the Testator

N.C. Gen. Stat. 31-42

Majority of States: have antilapse statutes, discussed later in outline Default Rules: apply when the will does not indicate what happens when a devisee predeceases the testator and the antilapse statute is not applicable 1. Specific or General Devise: If a specific or general devise lapses, the devise falls into the residue. 2. Residuary Devise: if the residuary devise lapses, the heirs of the testator take by intestacy. Note: That if there are more than one share of residuary estate devised and lapses, then the owners of the other residuary shares do not rcv the remainder of the residuary estate bc of the no-residue- of- a- residue rule. However: rule has been turned over in most states by statute or judicial decision. This no residue of a residue rule has also been rejected by UPC 2-604b (1990) and Restatement 3d of Property: Wills and Donative Transfers 5.5 3. Class Gift: if the devise is to a class of persons, and one member of the class predeceases the testator, the surviving members of the class divide the gift. 4. Void Devise: when the devisee is already dead at the time the will is executed, or made to some ineligible taker (ex. dog or cat) then the devise is void.

Pg. 359: Estate of Russell, 444 P.2d 353, 1968 Facts: Thelma Russell, Testator, died testate and had a valid holographic will which devised everything she owned to H.Quinn (her friend) & Roxy Russell (Her dog, she had two dogs named Roxy Russell one was intended to replace the other one and was alive at the time of execution), Georgia Russell ( her niece and heir at Law). Ps Arg: (Niece) argues that her aunt could not have devised a portion of her estate to the dog and that the dogs share should be devised to her since she is the only living heir of the testator. In addition, P alleges that the court erred in allowing extrinsic evidence to determine the Testators intent. Rule: A disposition in equal shares cannot be equated to with a disposition of the whole to one of them who may use whatever portion thereof as might be necessary on behalf of the other. A dog cannot be the beneficiary under a will the attempted gift to Roxy Russell is void. That portion of any residuary estate that is the subject of a lapsed gift to one of the residuary beneficiaries remains undisposed of by the will passes to heirs at law. 92, 220 The rule is equally applicable with respect to a void gift to one of the residuary beneficiaries. Reasoning: No words of the will give the entire residuum to Quinn, much less indicate that the provision for the dog is merely precatory in nature. Extrinsic evidence was admitted and considered accurately to determine that Roxy Russell was a dog. However, the extrinsic evidence brought forth to express the intent of the testator should have been excluded by the trial court.=bottom pg. 362 Conclusion: The residue of testatrix estate should be distributed in equal shares to Chester H. Quinn and Georgia Nan Russell Hembree. II. Antilapse statutes: they do not prevent lapse, they merely substitute other beneficiaries (usually descendants) for the dead beneficiary if certain requirements are met. 1. Typical Rule: If a devisee is of a specified relationship to the testator and is survived by descendants who survive the testator, the descendants are substituted for the predeceased devisee. 2. Common Law Rule: gives the predeceased devisees gift to the devisees descendants unless the testator provides otherwise.

Case 4 Ex. T devises her entire estate one half to my son A and one half to my daughter B. B predeceases T, leaving a child C. What happens to Bs share? Under: 1. Common Law: Being a residuary devise, would pass through intestacy, one half to A, One half to C=A would take and C would take 2. No residue of residue: All would go to A 3. Antilapse statute: C would take Bs share, to C, to A Presumed Intent: Scope of the Antilapse Rule: applies to lapse devisee ONLY if the devisee bears the particular relationship to the testator specified in the statute. Because the assumption is that the Testator would only want to imply this rule if this specific relationship exist. Some statutes: Apply only to descendants of the Testator Some statutes: Are Broader and apply to Kindred of the Testator, and occasionally to Kindred of the Testator as well Few States: statute applies to ALL devisees, regardless of relation to Testator 1969 UPC; 2-605: applies only to a devise of a grandparent or a lineal descendant of a grandparent, problem of increase 1990 UPC : adds a devise to a stepchild Default Rules: BC the antilapse statutes are designed to implement presumed intent, they state default rules that yield to a contrary expression of the testators actual intent. If a testator, stated in the will what would happen if someone predeceased them then this would apply. Words of Survivorship. If he survives me or To my surviving children in the absence of additional evidence are not indications of intent contrary for UPC 2-603(b)3, antilapse statute will still apply. However, majority of cases have held that an express req. of survivorship states an intent that the antilapse statute will not apply. 2008 UPC 2-603(b)(3): has rcvd negative feedback from several states. It has been adopted in seven states; Alaska, Colorado, Hawaii, Michigan, Montana, New Mexico, and North Dakota. Five states have enacted modified versions that preserve the majority rule, Arizona, Florida, Minnesota, Utah and Iowa. Texas and California have done likewise by nonuniform legislation. Both the 1969 and the 2008 antilapse statute are in the handout!2-603 will not be on the final exam. Pg. 367, Ruotolo v. Tietjen, 890 A.2d 166, 2006 Facts: John Swanson devised of his residuary estate to his stepdaughter,Hazel Brenan, if she survives me. Brennan died 17 days before Swanson. The court applied the applicable antilapse statute, Conn. Gen.Stat. 45a-441 ; which followed the UPC 2-603(b)(3) rule that survivorship language does not express contrary intent to devise to the heir of devisee upon predecesant death. Procedural History: Lower court held that the survivorship language indicated contrary intent and precluded the application of the antilapse statute. This decision was reversed by the Supreme Ct. Issue: Whether the court concluded that the antilapse statute does not apply? Whether an intent contrary to 45a-441 is so manifested? Rule: Antilapse statutes will apply unless testators intention to exclude its operation is shown with reasonable certainty. Reasoning: Antilapse statutes establish a strong rule of construction, designed to carry out presumed intention. Should be defeated only when the trier of fact determines that the testator wanted to disinherit the line of descent headed by the deceased devisee.

residuary language expresses an intention to . Avoid intestacy Our antilapse statute was enacted to prevent operation of the rule of lapse and unintended disinheritance. Burden of Proof: is on those who seek to deny statutory protection rather than on those who assert it. Rule from Ohio: added another req. in addition to contrary intent: It is necessary that the testator in app language , make an alternative provision in his will providing that in the event such relative predeceases or fails to survive the testator such devise shall be given to another specifically named or identifiable devisee or devisees. Holding: survivorship language does not express an intent contrary to the presumption of the anti-lapse statute, therefore, testator must unequivocally express that intent or simply provide for an alternate bequest. FYI words and meaning: To A and Her Heirs and assigns forever Words of Purchase: To A indicating to whom the property is devised Words of Limitation: and her heirs and assigns forever. Indicating what interest in the property devised; here fee simple. To A or Her Heirs The above mentioned phrase has been concluded that there are actually no words of limitation and just and indication that As Heirs would take the gift of estate if A predeceased the Testator, so as to prevent escheat. The courts have applied and as or to provide for a substitute gift to As heirs to avoid lapse. Ex. Jackson v. Schultz, 151 A.2d 284 (1959) The courts have reached the opposite result on virtually identical facts. Ex. Hofing v. Willis, 201 N.E.2d 852 III. Class Gifts Under Common law lapse rule, a class gift is treated differently from a gift to individuals. If a member of the class predeceased the Testator, then the class divides the predeceased share amongst other members of the class. What is a class? The test is often whether the testator is group minded. 1. Group Minded is determined if Testator used a class label in describing beneficiaries; ex. to my nieces and nephews. 2. Another way to Determine Class Gifts: A gift to beneficiaries who form a natural class, but are described by their individual names may be deemed a class gift if the court decides, after the admission of extrinsic evidence that the testator would want them to divide rather than one beneficiaries share to lapse. Pg. 376; Dawson v. Yucas; 239 N.E.2d 305, 1968 Under the restatement, when you have both the name as individuals and name of class this will be individuals but this is a rebuttable presumption and can be refuted by extrinsic evidence. Changes in Property after Execution of Will a) Ademption by Extinction Happens if a will includes a specific devise of an item of property, but the testator sells or gives away the item before death. Note: This doctrine does not apply to general, demonstrative or residuary devises only to specific devises.

(i) General Devise: when the testator intends to confer a general benefit and does not give a specific item of the testators property (ii) Demonstrative Devise: is a hybrid; a general devise yet payable from a specific source. (iii) Residuary Devise: conveys that a portion of the testaors estate not otherwise effectively devised by other parts of the will. (iv) SpecificDevise: is a disposition of a specific item of the testators property

i) Identity Theory of Ademption: if a specific devised item is not in the testators estate, the gift is extinguished (subject to limited exceptions listed below) ii) Intent Theory of Ademption: if the specifically devised item is not in the testators estate the beneficiary may be entitled to the replacement for, or cash value of, the original item, depending on whether the beneficiary can that this is what the testator would have wanted. In re Estate of Anton, 731 N.W.2d 19 (2007) Facts: Mary bequeathed her interest in a duplex to her step daughter, to biological son, residuary to her biological son and daughter. Mary was in a serious accident and had to be placed in nursing homes the latter part of her life. Her biological daughter, Nancy was her financial coordinator and durable power of attorney. Unbeknowst to Mary and in order to pay for her nursing home care, Nancy sold the duplex prior to the death of Mary. Issue: Whether the sale of certain property by an attorney in fact prior to the death of the testator resulted in Ademption of a specific devise of the property? Holding: No Ademption occurred bc even if the sell of property was disclosed to Mary she would not have had time to revise the will. Rule of Law; Estate of Bierstedt, 119 N.W. 2d 234 (1963): BC testator did not testamentary capacity to , in effect, work a change in the will, the sale could not be considered the manifest intention of the testator to modify the will. Therefore, no Ademption occurred. Rule of Law; Estate of Wolfe, 208 N.W.2d 923 (1973): Rejected the identity theory, where the property is missing from the estate bc of some act or event involuntary as to the testator, there is no Ademption. Rule of Law, Estate of Graham, 533 P.2d 1318 (1975): IN situations involving guardians, no ademption occurs, however, the beneficiary was entitled only to the unexpended balance of the proceeds of specifically devised property. Rule: Ademption occurs where a testator had knowledge of a transaction involving a specific devise, realizes the effect of the transaction on his or her estate plan, and has an opportunity to revise the will. Exceptions to Ademption (Identity Theory), avoidance of Ademption: To avoid: 1) Some cts will classify the devise as general or demonstrative rather than specific. 2) Classification of property as inter vivos disposition as a mere change in form not substance -Ex. Most courts hold that corp. merger is a mere change is form, not substance= no Ademption. 3) UPC 2-606(a)(5): Non ademption of specific devises; unpaid proceeds of sale, condemnation, or insurance, sale by conservator or agent; 1990 UPC abandons the identity theory and adopts the intent theory in this section. b) Stock Splits and the Problem of Increase Are a change in form, not substance= no Ademption Rule: Absent a contrary showing of intent, a devise of stock is entitled to additional shares rcvd by the testator as a result of the stock split. Note: In some jurisdictions, the cts treats stock splits differently than dividends.

UPC 2-605: stock dividends are treated the same as stock splits, beneficiary gets them along with the other shares. c) Ademption by Satisfaction Applies when the testator makes a transfer to a devisee after executing the will. Similar to Doctrine of Advancements: however, main diff. is that Ademption by Satisfaction usually applies to specific bequests not general (like doctrine of advancements). Some states: have enacted statutes that require that the intention of the testator to adeem by satisfaction to be shown in writing. d) Exoneration of Liens When a will makes a specific devise of land, on which there is a mortgage does the beneficiary take free of the mortgage? 1. Some states: Yes, the beneficiary would take free of the mortgage 2. Common Law Rule Exoneration of Liens : It is presumed that the testator wanted the debt like all debts to be paid out of the residuary estate and for the property to pass free of liens. 3. UPC 2-607: reverses the common law rule 4. N.C. Gen. Stat.28A-15-3 e) Abatement Problem of abatement arises when a estate has insufficient assets to pay debts as well as all the devises; some devises may be abated or reduced. Operates similarly to bankruptcy In absence of indication in the will how a estate is to be reduced or be abated, they would abate in the following order: 1) Residuary Devise 2) General devises 3) Specific and demonstrative to be reduced pro rata UPC 3-902: if the testamentary plan would be defeated by the usual order of abatement then the shares of the estate abate as necessary to give rise to effect to the intention of the testator. N.C. Gen. Stat. 28A-15-5

V.

Nonprobate Transfers and Planning for Incapacity

Have the effect of passing property at death outside of probate.

A.

Introduction to Will Substitutes

Four main will substitutes that reserves to the owner complete lifetime dominion, including the power to name and to change beneficiaries until death. Pure Will substitutes (Mass will substitutes): they are marketed by financial intermediaries using standard form instruments with fill in the blank beneficiary designations. 1) Life insurance A propertied middle age person commonly has several life insurance policies acquired individually, group policies from work. Designation of this policy mirrors the designation of a devisee in a will. Satisfies the twin element of wills: revocable until the death of the Testator and that the interests of the devisees are ambulatory, that is they are non existent until the death of the testator.

2) Pension accounts Supplementary retirement accounts 3) Joint accounts They look more like gifts than wills and are accounts over which the depositor retains explicit lifetime dominion while designating beneficiaries to take at his death. 4) Revocable Trust

B.

Will Substitutes and the Wills Act

Revocable Trusts Trustee manages property in a fiduciary capacity for one or more beneficiaries. The trustee holds legal title to the property and the beneficiaries hold equitable title. The trustee can be one of the beneficiaries of the trust, nut the same person cannot be the sole trustee and sole beneficiary bc then the trustee would owe no duties to anyone except himself. Settler, grantor, or trustor: person who creates the trust 1) Inter Vivos Trust: Created during the trustors life, may be revocable or irrevocable 2) Testamentary Trust: created by will Other ways to create a trust: 3) Deed of Trust : settler transfers the property to be held in trust to the trustee 4) Declaration of Trust: the settler simply declares himself to be trustee of certain property for the benefit of himself during his life, with the remainder to pass to other at his death. Payable on Death Contracts and Other Nonprobate Transfers

C.
Introduction

Will Substitutes and the Subsidiary Law of Wills

Revocable Trusts Life Insurance Pension and Retirement Account Multi-Party Bank and Brokerage Accounts

D. E. F.
VI.

Pour Over Wills and Revocable Trusts Joint Tenancies in Reality Planning for Incapacity

Restrictions on Testamentary Dispositions

A. B. C. Rights of the Surviving Spouse Protection of Children Contracts Relating to Wills