978-1285770178 Lecture Note BL ComLaw 1e IM-Ch31 Part 1

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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.

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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.

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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