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2 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in
whole or in part.
• Administrator—a person or party appointed by a court for a decedent who dies without a will to
administer the estate.
B. LAWS GOVERNING WILLS
Although the Uniform Probate Code (UPC) has been adopted in about a third of the states, state laws
vary widely
C. GIFTS BY WILL
• Legatee—the recipient of a legacy.
a. Specific
A specific devise or bequest (legacy) describes particular property.
distributed to the surviving spouse, descendants, or others.
2. Abatement
If the assets are insufficient to pay all general bequests, the legatees receive reduced benefits.
A testator must be of legal age (usually eighteen) and sound mind—able to formulate and
comprehend a plan for the disposition of property—when a will is made. A valid will represents the
maker’s intent. The testator must—
• Know the nature of the act of making a will.
overriding the maker’s intent, the will is invalid. Undue influence may be inferred when
relatives are overlooked in favor of a sole, nonrelative beneficiary who was in a position to
influence the making of the will.
CHAPTER 31: WILLS AND TRUSTS 3
CASE SYNOPSIS—
Case 31.1: In re Estate of Johnson
Belton Johnson was married three times. He had three children from his first marriage, and eight
grandchildren. While married to his second wife, he executed a will that provided for her during her lifetime
and left the remainder of his estate in a trust for his grandchildren and children. When his second wife died,
he changed the will to give each grandchild $1 million and the remainder to five charities. His children were
provided for in a separate trust. While married to his third wife, Laura, he executed a will that left $1 million to
each grandchild and the rest to Laura, and later a will that left his entire estate in trust to Laura for her life and
then to a foundation that she controlled. After Johnson died, his attorney submitted the most recent will to
probate. Johnson’s children and grandchildren challenged it. A jury concluded that it was invalid due to
Laura’s undue influence. She appealed.
A state intermediate appellate court affirmed. Johnson was an admitted alcoholic with permanent
cognitive defects and memory problems that would have caused him to be more susceptible to undue
influence. Evidence suggested that Laura had exerted substantial control over many aspects of Johnson’s
life. Other evidence established that Johnson wanted to provide for his descendants, as well as for the
charities named in the earlier will.
..................................................................................................................................................
Notes and Questions
Why would one heir (third wife, Laura) seem loathe to share an estate with the other heirs
(Johnson’s children and grandchildren from a previous marriage)? The simplest and most obvious
answer is greed. But there may have been personal friction between the parties to this case that are not
revealed by the bare facts in the court’s opinion.
4 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
ANSWER TO “THE ETHICAL DIMENSION”
QUESTION IN CASE 31.1
No evidence was presented to indicate that Johnson was intoxicated at the time he executed the
will. So why did the court’s analysis focus on the evidence of Johnson’s alcoholism? The court
focuses on the evidence of Johnson’s alcoholism because it supports the notion that he was particularly
susceptible to his wife’s influence. It also indicates that his mental capacity might have been diminished (as
the experts testified). When a court is reviewing a jury’s verdict, it assesses the facts in the light most
favorable to the jury’s determination. As the court noted, “when reviewing a legal sufficiency or ‘no evidence’
challenge, we determine ‘whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.’” Thus, the court looked at the facts concerning Johnson’s on-going problems
with alcohol to decide if the jury could reasonably have concluded that his mind had been overpowered by his
wife at the time he signed the will. It also looked at Laura’s testimony that Johnson had not had a drinking
problem and the evidence that Johnson himself had admitted to his on-going drinking in 2000, a year before
his death. Because a jury is free to decide the credibility of witnesses and to draw inferences from their
testimony, the court found that the jury could reasonably have concluded that Laura was lying and that she
had exerted undue influence. It did not matter to the court that there was no evidence that Johnson was drunk
at the moment he signed the will, because undue influence often “involves an extended course of dealings
and circumstances.”
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Other cases determining the testator’s intent include the following:
• In re Estate of Wright, 829 So.2d 1274 (Miss.App. 2002) (the testator’s nephew was the intended
beneficiary of the settlement proceeds of a lawsuit initiated by the testator, who, when she made her will, was
aware of the occurrence on her property that precipitated the suit and bequeathed her interest in the property
to the nephew without amending the will to direct any payments in the suit to someone other than the
nephew).
• Painter v. Coleman, 211 W.Va. 451, 566 S.E.2d 588 (2002) (rejecting the language in a will was nec-
essary to give effect to the testator’s intent when a spouse deleted a clause that would have devised her
estate to her spouse in case of their simultaneous deaths—the other spouse had already died—and that
deletion would have forced the entire estate to pass intestate, which was not the surviving spouse’s intent).
b. Disinheritance
A testator is not required to give property to his or her family. But laws protect minors from the
loss of a residence, and most states prevent accidental disinheritance.
2. Writing
whole or in part.
whole or in part.
8 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
Marion Peterson would be deemed to have died intestate—without a valid will. In this situation, the caveators,
as siblings of the testator, might inherit part or all of the estate (depending on whether there other
beneficiaries who might inherit under intestacy laws).
2. What could the testator have done differently to clarify her intentions in her will? The testator could
have revoked her will totally or partially by a codicil, which is a written instrument separate from the will that
amends or revokes provisions in the will. If the testator only wanted to change the successor beneficiaries’
names (or remove any successor beneficiaries from the will), a simple amendment to the will to this effect
would have made her intention clear to the court.
3. Suppose that shortly before her death, Peterson had asked Lucas to tear up her will, and Lucas
had done so. Would the result in this case have been different? Discuss. Yes, if, shortly before
Peterson’s death, she had asked Lucas to tear up her will, and Lucas had done it, the result in this case
would have been different. A testator may revoke a will by having someone tear it up at her direction. In that
circumstance, the will’s proponents would not be able to prove that it existed at the time of the testator’s death
or that it was destroyed without his or her consent.
In the Peterson case, other evidence might have been considered if Lucas had torn up Peterson’s will at
her direction, however. For example, the court might have heard testimony concerning Peterson’s capacity,
which might have influenced the destruction of the will and the court’s decision.
4. How might the availability of a secure online repository for a person’s will affect a challenge to the
will? A copy of a will might be produced more easily if it were deposited in an electronic database that could
be accessed online. This could certainly affect the outcome in a case in which the will could not otherwise be
found. Or if a paper copy had been destroyed, or was otherwise missing, the existence of an e-copy might
support a finding that the testator had not intended to revoke the will by destruction.
Whether a court would accept an e-copy as authentic is another question. The kind of proof that could be
required to validate an online copy would be different from the proof needed to prove a paper copy. The
testator’s e-signature would be in a different form (even a copy of the original would be electronic). These and
other factors in such a circumstance could make it easier to challenge and easier to propound a will.
2. Revocation by a Subsequent Writing
A codicil can amend or revoke provisions in a will. A new will may (or may not) revoke a prior will,
depending on the language (the text provides an example). If an express declaration of revocation
is missing, the wills are read together; if there are inconsistent dispositions, the second will controls.
3. Revocation by Operation of Law
a. Marriage and Divorce
CHAPTER 31: WILLS AND TRUSTS 9
whole or in part.
b. Children
The birth of children after a will has been executed generally revokes the will (at least as
regards the new children). Generally, unless the will clearly indicates that the testator intended
to disinherit the new children, they get intestate shares.
F. RIGHTS UNDER A WILL
There are limits on the way a person can dispose of property in a will, providing a spouse’s elective
share as an example. State statutes provide methods by which a surviving spouse can renounce his or
her gift by will and take an elective share (to obtain whichever is most advantageous).
ADDITIONAL BACKGROUND—
Elective Share under the Revised UPC
The following is the section of the revised (1990) UPC that adjusted the amount of a surviving spouse’s
elective share to relate to the number of years that he or she had been married to the decedent.
ARTICLE II. INTESTACY, WILLS, AND DONATIVE TRANSFERS (1990)
PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE
§ 2–202. Elective Share.
(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in this State has a right
of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to
the value of the elective-share percentage of the augmented estate, determined by the length of time the
spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse were married
to each other:
The elective-share percentage is:
Less than 1 year
Supplemental Amount Only.
1 year but less than 2 years
3% of the augmented estate.
2 years but less than 3 years
6% of the augmented estate.
3 years but less than 4 years
9% of the augmented estate.
4 years but less than 5 years
12% of the augmented estate.
5 years but less than 6 years
15% of the augmented estate.
6 years but less than 7 years
18% of the augmented estate.
7 years but less than 8 years
21% of the augmented estate.
8 years but less than 9 years
24% of the augmented estate.
9 years but less than 10 years
27% of the augmented estate.
10 years but less than 11 years
30% of the augmented estate.
11 years but less than 12 years
34% of the augmented estate.
12 years but less than 13 years
38% of the augmented estate.
13 years but less than 14 years
42% of the augmented estate.
14 years but less than 15 years
46% of the augmented estate.
15 years or more
50% of the augmented estate.
(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2–207, 2–
209(a)(1), and that part of the elective-share amount payable from the decedent’s probate estate and
nonprobate transfers to others under Section 2–209(b) and (c) is less than [$50,000], the surviving spouse is
2 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
© 2015 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in
whole or in part.
• Administrator—a person or party appointed by a court for a decedent who dies without a will to
administer the estate.
B. LAWS GOVERNING WILLS
Although the Uniform Probate Code (UPC) has been adopted in about a third of the states, state laws
vary widely
C. GIFTS BY WILL
• Legatee—the recipient of a legacy.
a. Specific
A specific devise or bequest (legacy) describes particular property.
distributed to the surviving spouse, descendants, or others.
2. Abatement
If the assets are insufficient to pay all general bequests, the legatees receive reduced benefits.
A testator must be of legal age (usually eighteen) and sound mind—able to formulate and
comprehend a plan for the disposition of property—when a will is made. A valid will represents the
maker’s intent. The testator must—
• Know the nature of the act of making a will.
overriding the maker’s intent, the will is invalid. Undue influence may be inferred when
relatives are overlooked in favor of a sole, nonrelative beneficiary who was in a position to
influence the making of the will.
CHAPTER 31: WILLS AND TRUSTS 3
CASE SYNOPSIS—
Case 31.1: In re Estate of Johnson
Belton Johnson was married three times. He had three children from his first marriage, and eight
grandchildren. While married to his second wife, he executed a will that provided for her during her lifetime
and left the remainder of his estate in a trust for his grandchildren and children. When his second wife died,
he changed the will to give each grandchild $1 million and the remainder to five charities. His children were
provided for in a separate trust. While married to his third wife, Laura, he executed a will that left $1 million to
each grandchild and the rest to Laura, and later a will that left his entire estate in trust to Laura for her life and
then to a foundation that she controlled. After Johnson died, his attorney submitted the most recent will to
probate. Johnson’s children and grandchildren challenged it. A jury concluded that it was invalid due to
Laura’s undue influence. She appealed.
A state intermediate appellate court affirmed. Johnson was an admitted alcoholic with permanent
cognitive defects and memory problems that would have caused him to be more susceptible to undue
influence. Evidence suggested that Laura had exerted substantial control over many aspects of Johnson’s
life. Other evidence established that Johnson wanted to provide for his descendants, as well as for the
charities named in the earlier will.
..................................................................................................................................................
Notes and Questions
Why would one heir (third wife, Laura) seem loathe to share an estate with the other heirs
(Johnson’s children and grandchildren from a previous marriage)? The simplest and most obvious
answer is greed. But there may have been personal friction between the parties to this case that are not
revealed by the bare facts in the court’s opinion.
4 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
ANSWER TO “THE ETHICAL DIMENSION”
QUESTION IN CASE 31.1
No evidence was presented to indicate that Johnson was intoxicated at the time he executed the
will. So why did the court’s analysis focus on the evidence of Johnson’s alcoholism? The court
focuses on the evidence of Johnson’s alcoholism because it supports the notion that he was particularly
susceptible to his wife’s influence. It also indicates that his mental capacity might have been diminished (as
the experts testified). When a court is reviewing a jury’s verdict, it assesses the facts in the light most
favorable to the jury’s determination. As the court noted, “when reviewing a legal sufficiency or ‘no evidence’
challenge, we determine ‘whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.’” Thus, the court looked at the facts concerning Johnson’s on-going problems
with alcohol to decide if the jury could reasonably have concluded that his mind had been overpowered by his
wife at the time he signed the will. It also looked at Laura’s testimony that Johnson had not had a drinking
problem and the evidence that Johnson himself had admitted to his on-going drinking in 2000, a year before
his death. Because a jury is free to decide the credibility of witnesses and to draw inferences from their
testimony, the court found that the jury could reasonably have concluded that Laura was lying and that she
had exerted undue influence. It did not matter to the court that there was no evidence that Johnson was drunk
at the moment he signed the will, because undue influence often “involves an extended course of dealings
and circumstances.”
ADDITIONAL CASES ADDRESSING THIS ISSUE —
Other cases determining the testator’s intent include the following:
• In re Estate of Wright, 829 So.2d 1274 (Miss.App. 2002) (the testator’s nephew was the intended
beneficiary of the settlement proceeds of a lawsuit initiated by the testator, who, when she made her will, was
aware of the occurrence on her property that precipitated the suit and bequeathed her interest in the property
to the nephew without amending the will to direct any payments in the suit to someone other than the
nephew).
• Painter v. Coleman, 211 W.Va. 451, 566 S.E.2d 588 (2002) (rejecting the language in a will was nec-
essary to give effect to the testator’s intent when a spouse deleted a clause that would have devised her
estate to her spouse in case of their simultaneous deaths—the other spouse had already died—and that
deletion would have forced the entire estate to pass intestate, which was not the surviving spouse’s intent).
b. Disinheritance
A testator is not required to give property to his or her family. But laws protect minors from the
loss of a residence, and most states prevent accidental disinheritance.
2. Writing
whole or in part.
whole or in part.
8 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
Marion Peterson would be deemed to have died intestate—without a valid will. In this situation, the caveators,
as siblings of the testator, might inherit part or all of the estate (depending on whether there other
beneficiaries who might inherit under intestacy laws).
2. What could the testator have done differently to clarify her intentions in her will? The testator could
have revoked her will totally or partially by a codicil, which is a written instrument separate from the will that
amends or revokes provisions in the will. If the testator only wanted to change the successor beneficiaries’
names (or remove any successor beneficiaries from the will), a simple amendment to the will to this effect
would have made her intention clear to the court.
3. Suppose that shortly before her death, Peterson had asked Lucas to tear up her will, and Lucas
had done so. Would the result in this case have been different? Discuss. Yes, if, shortly before
Peterson’s death, she had asked Lucas to tear up her will, and Lucas had done it, the result in this case
would have been different. A testator may revoke a will by having someone tear it up at her direction. In that
circumstance, the will’s proponents would not be able to prove that it existed at the time of the testator’s death
or that it was destroyed without his or her consent.
In the Peterson case, other evidence might have been considered if Lucas had torn up Peterson’s will at
her direction, however. For example, the court might have heard testimony concerning Peterson’s capacity,
which might have influenced the destruction of the will and the court’s decision.
4. How might the availability of a secure online repository for a person’s will affect a challenge to the
will? A copy of a will might be produced more easily if it were deposited in an electronic database that could
be accessed online. This could certainly affect the outcome in a case in which the will could not otherwise be
found. Or if a paper copy had been destroyed, or was otherwise missing, the existence of an e-copy might
support a finding that the testator had not intended to revoke the will by destruction.
Whether a court would accept an e-copy as authentic is another question. The kind of proof that could be
required to validate an online copy would be different from the proof needed to prove a paper copy. The
testator’s e-signature would be in a different form (even a copy of the original would be electronic). These and
other factors in such a circumstance could make it easier to challenge and easier to propound a will.
2. Revocation by a Subsequent Writing
A codicil can amend or revoke provisions in a will. A new will may (or may not) revoke a prior will,
depending on the language (the text provides an example). If an express declaration of revocation
is missing, the wills are read together; if there are inconsistent dispositions, the second will controls.
3. Revocation by Operation of Law
a. Marriage and Divorce
CHAPTER 31: WILLS AND TRUSTS 9
whole or in part.
b. Children
The birth of children after a will has been executed generally revokes the will (at least as
regards the new children). Generally, unless the will clearly indicates that the testator intended
to disinherit the new children, they get intestate shares.
F. RIGHTS UNDER A WILL
There are limits on the way a person can dispose of property in a will, providing a spouse’s elective
share as an example. State statutes provide methods by which a surviving spouse can renounce his or
her gift by will and take an elective share (to obtain whichever is most advantageous).
ADDITIONAL BACKGROUND—
Elective Share under the Revised UPC
The following is the section of the revised (1990) UPC that adjusted the amount of a surviving spouse’s
elective share to relate to the number of years that he or she had been married to the decedent.
ARTICLE II. INTESTACY, WILLS, AND DONATIVE TRANSFERS (1990)
PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE
§ 2–202. Elective Share.
(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in this State has a right
of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to
the value of the elective-share percentage of the augmented estate, determined by the length of time the
spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse were married
to each other:
The elective-share percentage is:
Less than 1 year
Supplemental Amount Only.
1 year but less than 2 years
3% of the augmented estate.
2 years but less than 3 years
6% of the augmented estate.
3 years but less than 4 years
9% of the augmented estate.
4 years but less than 5 years
12% of the augmented estate.
5 years but less than 6 years
15% of the augmented estate.
6 years but less than 7 years
18% of the augmented estate.
7 years but less than 8 years
21% of the augmented estate.
8 years but less than 9 years
24% of the augmented estate.
9 years but less than 10 years
27% of the augmented estate.
10 years but less than 11 years
30% of the augmented estate.
11 years but less than 12 years
34% of the augmented estate.
12 years but less than 13 years
38% of the augmented estate.
13 years but less than 14 years
42% of the augmented estate.
14 years but less than 15 years
46% of the augmented estate.
15 years or more
50% of the augmented estate.
(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2–207, 2–
209(a)(1), and that part of the elective-share amount payable from the decedent’s probate estate and
nonprobate transfers to others under Section 2–209(b) and (c) is less than [$50,000], the surviving spouse is
