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in whole or in part.
CHAPTER 31
WILLS AND TRUSTS
in whole or in part.
CHAPTER 31: WILLS AND TRUSTS 3
in whole or in part.
CASE 31.3—LEGAL REASONING QUESTIONS (PAGE 610)
1A. Why would the caveators argue that the entire will should be revoked? How would
the will’s revocation benefit them? Clearly, if the will were only partially revoked, the
caveators would take nothing. They were among Lucas’s successor beneficiaries whose names
had been crossed out by the testator. In other words, if the will were only partially revoked,
Lucas would take the entire estate, and if she died, the estate would pass to her beneficiaries—
not to the caveators. If the entire will was revoked, however, then Marion Peterson would be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).
2A. 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.
3A. 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.
4A. 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.
4 UNIT SEVEN: PROPERTY AND ITS PROTECTION
in whole or in part.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Type of trust
Based on the information it appears to be a revocable living trust or inter vivos trust as it
remained under Ramish’s control.
2A. Will requirements
Ramish's will meets all the requirements, which concern (1) the testator's capacity, (2) the will's
form, (3) the testator's signature, (4) the will's witnesses, and (5) the will's publication. As is
generally required, Ramish's will was in writing, albeit his own handwriting (which makes it
holographic). Additionally, Ramish signed the will before five witnesses, who also signed it.
Publication is becoming an unnecessary formality in most states and is not required by the UPC.
Nevertheless, one can probably assume that Ramish made an oral declaration to the witnesses
that the document was his last will and testament. As for capacity, a testator must be of legal
age and sound mind when a will is made. An aneurysm and heat stroke could affect an
individual's mental function, but the problem states that Ramish had "headaches but no other
symptoms," indicating that he was of sound mind. Another aspect of this requirement, however,
is that the testator remember in the will the "natural objects of his bounty"—i.e., family members
or others for whom he or she has affection. On this account, Ramish's gifts to "my friend" Eshom
and Johansen may not alone call the will into question—the facts do not establish the
relationship among these parties—but Ramish's failure to acknowledge his mother, nephew,
son-in-law, and granddaughter possibly would.
3A. Intestacy inheritance
Intestacy laws vary widely from state to state, but generally, if an individual dies without a will
and has no spouse or surviving child, then, in order, lineal descendants (grandchildren,
brothers, and sisters, and—in some states—parents of the decedent) inherit. If there are no
lineal descendants, then collateral heirs (nieces, nephews, aunts, and uncles of the decedent)
inherit. Here, that order might dictate that Ramish’s granddaughter would inherit his estate.
4A. Power of attorney
It appears that Ramish gave a health-care power of attorney, which put Johansen in charge of
choosing his medical treatment should he be incapable of making decisions. A living will sets
out specific medical procedures that will be taken in the event of incapacity.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
Any changes to existing, fully witnessed wills should also have to be witnessed. If
a will requires witnesses to be valid, so, too, should any changes to that will. Otherwise, there
are too many chances for fraud by those close to the testator.
CHAPTER 31: WILLS AND TRUSTS 5
in whole or in part.
A testator should have power to make changes to her or his will without the benefit of
witnesses. Such unwitnessed changes should not invalidate the will.
ANSWERS TO ISSUE SPOTTERS IN THE EXAMPREP FEATURE
AT THE END OF THE CHAPTER
1A. Sheila makes out a will, leaving her property in equal thirds to Toby and Umeko,
her children, and Velda, her niece. Two years later, Sheila is adjudged mentally in
competent, and that same year, she dies. Can Toby and Umeko have Sheila’s will
revoked on the ground that she did not have the capacity to make a will? Why or why
not? . No. To have testamentary capacity, a testator must be of legal age and sound mind at
the time the will is made. Generally, the testator must (1) know the nature of the act, (2)
comprehend and remember the “natural objects of his or her bounty,” (3) know the nature and
extent of her or his property, and (4) understand the distribution of assets called for by the will.
In this situation, Sheila had testamentary capacity at the time she made the will. The fact that
she was ruled mentally incompetent two years after making the will does not provide sufficient
grounds to revoke it.
2A. Ralph dies without having made a will. He is survived by many relatives—a
spouse, children, adopted children, sisters, brothers, uncles, aunts, cousins, nephews,
and nieces. What determines who gets what? The estate will pass according to the state’s
intestacy laws. Intestacy laws set out how property is distributed when a person dies without a
will. Their purpose is to carry out the likely intent of the decedent. The laws determine which of
the deceased’s natural heirs (including first the surviving spouse, second lineal descendants,
third parents, and finally collateral heirs) inherit his or her property.
ANSWERS TO BUSINESS SCENARIOS AND BUSINESS CASE PROBLEMS
AT THE END OF THE CHAPTER
31-1A. Wills and intestacy laws
(Chapter 31—Pages 604 and 613)
(a) In most states, for a will to be valid, it must be in writing, signed by the testator,
and witnessed (attested to) according to the statutes of the state. In some states the testator is
dealing with witness qualifications.
6 UNIT SEVEN: PROPERTY AND ITS PROTECTION
© 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.
(b) If the will is declared invalid, Benjamin’s estate will pass in accordance with the
state’s intestacy laws. These statutes provide for distribution of an estate when there is no valid
will. The intent of the statutes is to distribute the estate in the way that the deceased person
would have wished. Generally, the estate is divided between a surviving spouse and all
surviving children. Because Benjamin is a widower, if his only surviving child is Edward, the
entire estate will go to Edward, and Benjamin’s grandchildren, Perry and Paul, will receive
nothing from the estate.
(c) If the will is valid, the estate will be divided between Benjamin’s two children,
31-2A. Specific bequests
(Chapter 31—Page 604)
provision. A court might be asked, however, to declare that the father’s intent was to give his
daughter, on his death, his Ferrari, whatever the year of its make. If the court interprets the
31-3A. Revocation of wills
(Chapter 31—Page 609)
deceased has died intestate, and the balance passes under the will. In this case, if the will is
revoked by marriage, Lisa will receive the entire estate, and Carol, as James’s mother, will
companied by a property settlement, most states revoke that portion of the will that disposed
property to the former spouse. Although this matter is frequently controlled by statute, in the
is that unless the child is specifically excluded by the will, the child was intended to inherit and
was omitted in error. Therefore, Claire would receive one-half of the estate in most states.
in whole or in part.
CHAPTER 31: WILLS AND TRUSTS 9
in whole or in part.
federal court cannot dispose of the property. But a federal court can adjudicate matters “outside
those confines and within federal jurisdiction.” Vickie’s claim against Pierce was a “widely
recognized tort” that did not involve the administration or probate of an estate. And “Texas may
not reserve to its probate courts the exclusive right to adjudicate a transitory tort.” The federal
district court thus “properly asserted jurisdiction.”
(c) The bankruptcy court issued a judgment in favor of Vickie on Pierce's claim and
her counterclaim. The court awarded her compensatory damages of more than $449 million—
less whatever she recovered in the proceedings in Texas—and $25 million in punitive damages.
On Pierce’s appeal from the bankruptcy court, a federal district court ruled that he had
tortiously interfered with Vickie's “expectancy.” The court found that J. Howard directed his
lawyers to prepare for Vickie an inter vivos trust consisting of half the appreciation of his assets
from the date of their marriage. Pierce conspired to suppress or destroy the trust and to strip J.
Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for
the surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false
pretenses. The court reduced her award, however, to $44.3 million in compensatory damages
and an equal amount in punitive damages.
As explained in the answer to the previous question, the U.S. Court of Appeals for the
Ninth Circuit reversed the result, but the United States Supreme Court reversed the appellate
court’s judgment and remanded the case for further proceedings. Ultimately, if the bankruptcy
court’s decision is determined to be a “core” judgment, it could be reinstated. This outcome
might see the case being appealed again to the Supreme Court.
(d) If a child is born after a will is executed, and it appears that the testator would have
provided for the child, the child is entitled to whatever portion of the estate she would have
received under the applicable state intestacy laws. Only if it appears that the testator intended to
disinherit the child would the child not be allowed take an intestate share. In Vickie’s will, there is
a clause that seems to disinherit future children, but it has been disputed as language carelessly
copied from a will form and thus arguably not enforceable.
If a beneficiary dies before the testator, or as in this case when a child dies before his
parent and there is a surviving sister, the sole sibling may inherit the deceased beneficiary’s
share. Thus, here, Vickie’s daughter may be the heir to whatever share of J. Howard’s assets
Vickie’s estate ultimately receives, as well as whatever her estate is finally awarded on her
personal claim against Pierce.
31–9A. LEGAL REASONING GROUP ACTIVITY—Intestacy laws
(a) The court should decide the inheritance rights of children conceived from the
sperm of a deceased individual and his surviving spouse based on the children’s genetic
relationship with the decedent, and whether the decedent consented both to reproduce
posthumously and to support any resulting child. Of course, if the state inheritance statutes limit
the class of posthumous children to those in utero at the time of the decedent’s death or have
certain other requirements, those standards must be met and applied. The purpose of the state
intestacy laws and other state and individual interests might be considered as well.
(b) It is in the best interest of the children conceived after a parent’s death (by means
of artificial insemination or in vitro fertilization) that those children have a right to inherit from
10 UNIT SEVEN: PROPERTY AND ITS PROTECTION
in whole or in part.
their parents. There are three important factors to take into consideration in deciding this
question—the best interest of the children, the state’s interest in the orderly administration of
estates, and the reproductive rights of the genetic parents. The most important factor is the best
interest of the children. Generally, all children should be entitled to the same rights under the
law regardless of the circumstances of their conception. Among these rights is the right to inherit
from their parents.
(c) A child who is conceived after his or her parent’s death by means of artificial
insemination or in vitro fertilization should be allowed to inherit from the deceased parent if the
other parent establishes the genetic relationship with the decedent, and shows that the
decedent consented to reproduce posthumously and to support any resulting child. On the same
basis, a child who is conceived after his or her father’s death by means of a surrogate should
also be allowed to inherit from the deceased father. It is in the best interest of these children that
inheritance rights be granted.
in whole or in part.
CHAPTER 31: WILLS AND TRUSTS 3
in whole or in part.
CASE 31.3—LEGAL REASONING QUESTIONS (PAGE 610)
1A. Why would the caveators argue that the entire will should be revoked? How would
the will’s revocation benefit them? Clearly, if the will were only partially revoked, the
caveators would take nothing. They were among Lucas’s successor beneficiaries whose names
had been crossed out by the testator. In other words, if the will were only partially revoked,
Lucas would take the entire estate, and if she died, the estate would pass to her beneficiaries—
not to the caveators. If the entire will was revoked, however, then 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).
2A. 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.
3A. 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.
4A. 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.
4 UNIT SEVEN: PROPERTY AND ITS PROTECTION
in whole or in part.
ANSWERS TO QUESTIONS IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
1A. Type of trust
Based on the information it appears to be a revocable living trust or inter vivos trust as it
remained under Ramish’s control.
2A. Will requirements
Ramish's will meets all the requirements, which concern (1) the testator's capacity, (2) the will's
form, (3) the testator's signature, (4) the will's witnesses, and (5) the will's publication. As is
generally required, Ramish's will was in writing, albeit his own handwriting (which makes it
holographic). Additionally, Ramish signed the will before five witnesses, who also signed it.
Publication is becoming an unnecessary formality in most states and is not required by the UPC.
Nevertheless, one can probably assume that Ramish made an oral declaration to the witnesses
that the document was his last will and testament. As for capacity, a testator must be of legal
age and sound mind when a will is made. An aneurysm and heat stroke could affect an
individual's mental function, but the problem states that Ramish had "headaches but no other
symptoms," indicating that he was of sound mind. Another aspect of this requirement, however,
is that the testator remember in the will the "natural objects of his bounty"—i.e., family members
or others for whom he or she has affection. On this account, Ramish's gifts to "my friend" Eshom
and Johansen may not alone call the will into question—the facts do not establish the
relationship among these parties—but Ramish's failure to acknowledge his mother, nephew,
son-in-law, and granddaughter possibly would.
3A. Intestacy inheritance
Intestacy laws vary widely from state to state, but generally, if an individual dies without a will
and has no spouse or surviving child, then, in order, lineal descendants (grandchildren,
brothers, and sisters, and—in some states—parents of the decedent) inherit. If there are no
lineal descendants, then collateral heirs (nieces, nephews, aunts, and uncles of the decedent)
inherit. Here, that order might dictate that Ramish’s granddaughter would inherit his estate.
4A. Power of attorney
It appears that Ramish gave a health-care power of attorney, which put Johansen in charge of
choosing his medical treatment should he be incapable of making decisions. A living will sets
out specific medical procedures that will be taken in the event of incapacity.
ANSWER TO DEBATE THIS QUESTION IN THE REVIEWING FEATURE
AT THE END OF THE CHAPTER
Any changes to existing, fully witnessed wills should also have to be witnessed. If
a will requires witnesses to be valid, so, too, should any changes to that will. Otherwise, there
are too many chances for fraud by those close to the testator.
CHAPTER 31: WILLS AND TRUSTS 5
in whole or in part.
A testator should have power to make changes to her or his will without the benefit of
witnesses. Such unwitnessed changes should not invalidate the will.
ANSWERS TO ISSUE SPOTTERS IN THE EXAMPREP FEATURE
AT THE END OF THE CHAPTER
1A. Sheila makes out a will, leaving her property in equal thirds to Toby and Umeko,
her children, and Velda, her niece. Two years later, Sheila is adjudged mentally in
competent, and that same year, she dies. Can Toby and Umeko have Sheila’s will
revoked on the ground that she did not have the capacity to make a will? Why or why
not? . No. To have testamentary capacity, a testator must be of legal age and sound mind at
the time the will is made. Generally, the testator must (1) know the nature of the act, (2)
comprehend and remember the “natural objects of his or her bounty,” (3) know the nature and
extent of her or his property, and (4) understand the distribution of assets called for by the will.
In this situation, Sheila had testamentary capacity at the time she made the will. The fact that
she was ruled mentally incompetent two years after making the will does not provide sufficient
grounds to revoke it.
2A. Ralph dies without having made a will. He is survived by many relatives—a
spouse, children, adopted children, sisters, brothers, uncles, aunts, cousins, nephews,
and nieces. What determines who gets what? The estate will pass according to the state’s
intestacy laws. Intestacy laws set out how property is distributed when a person dies without a
will. Their purpose is to carry out the likely intent of the decedent. The laws determine which of
the deceased’s natural heirs (including first the surviving spouse, second lineal descendants,
third parents, and finally collateral heirs) inherit his or her property.
ANSWERS TO BUSINESS SCENARIOS AND BUSINESS CASE PROBLEMS
AT THE END OF THE CHAPTER
31-1A. Wills and intestacy laws
(Chapter 31—Pages 604 and 613)
(a) In most states, for a will to be valid, it must be in writing, signed by the testator,
and witnessed (attested to) according to the statutes of the state. In some states the testator is
dealing with witness qualifications.
6 UNIT SEVEN: PROPERTY AND ITS PROTECTION
© 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.
(b) If the will is declared invalid, Benjamin’s estate will pass in accordance with the
state’s intestacy laws. These statutes provide for distribution of an estate when there is no valid
will. The intent of the statutes is to distribute the estate in the way that the deceased person
would have wished. Generally, the estate is divided between a surviving spouse and all
surviving children. Because Benjamin is a widower, if his only surviving child is Edward, the
entire estate will go to Edward, and Benjamin’s grandchildren, Perry and Paul, will receive
nothing from the estate.
(c) If the will is valid, the estate will be divided between Benjamin’s two children,
31-2A. Specific bequests
(Chapter 31—Page 604)
provision. A court might be asked, however, to declare that the father’s intent was to give his
daughter, on his death, his Ferrari, whatever the year of its make. If the court interprets the
31-3A. Revocation of wills
(Chapter 31—Page 609)
deceased has died intestate, and the balance passes under the will. In this case, if the will is
revoked by marriage, Lisa will receive the entire estate, and Carol, as James’s mother, will
companied by a property settlement, most states revoke that portion of the will that disposed
property to the former spouse. Although this matter is frequently controlled by statute, in the
is that unless the child is specifically excluded by the will, the child was intended to inherit and
was omitted in error. Therefore, Claire would receive one-half of the estate in most states.
in whole or in part.
CHAPTER 31: WILLS AND TRUSTS 9
in whole or in part.
federal court cannot dispose of the property. But a federal court can adjudicate matters “outside
those confines and within federal jurisdiction.” Vickie’s claim against Pierce was a “widely
recognized tort” that did not involve the administration or probate of an estate. And “Texas may
not reserve to its probate courts the exclusive right to adjudicate a transitory tort.” The federal
district court thus “properly asserted jurisdiction.”
(c) The bankruptcy court issued a judgment in favor of Vickie on Pierce's claim and
her counterclaim. The court awarded her compensatory damages of more than $449 million—
less whatever she recovered in the proceedings in Texas—and $25 million in punitive damages.
On Pierce’s appeal from the bankruptcy court, a federal district court ruled that he had
tortiously interfered with Vickie's “expectancy.” The court found that J. Howard directed his
lawyers to prepare for Vickie an inter vivos trust consisting of half the appreciation of his assets
from the date of their marriage. Pierce conspired to suppress or destroy the trust and to strip J.
Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for
the surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false
pretenses. The court reduced her award, however, to $44.3 million in compensatory damages
and an equal amount in punitive damages.
As explained in the answer to the previous question, the U.S. Court of Appeals for the
Ninth Circuit reversed the result, but the United States Supreme Court reversed the appellate
court’s judgment and remanded the case for further proceedings. Ultimately, if the bankruptcy
court’s decision is determined to be a “core” judgment, it could be reinstated. This outcome
might see the case being appealed again to the Supreme Court.
(d) If a child is born after a will is executed, and it appears that the testator would have
provided for the child, the child is entitled to whatever portion of the estate she would have
received under the applicable state intestacy laws. Only if it appears that the testator intended to
disinherit the child would the child not be allowed take an intestate share. In Vickie’s will, there is
a clause that seems to disinherit future children, but it has been disputed as language carelessly
copied from a will form and thus arguably not enforceable.
If a beneficiary dies before the testator, or as in this case when a child dies before his
parent and there is a surviving sister, the sole sibling may inherit the deceased beneficiary’s
share. Thus, here, Vickie’s daughter may be the heir to whatever share of J. Howard’s assets
Vickie’s estate ultimately receives, as well as whatever her estate is finally awarded on her
personal claim against Pierce.
31–9A. LEGAL REASONING GROUP ACTIVITY—Intestacy laws
(a) The court should decide the inheritance rights of children conceived from the
sperm of a deceased individual and his surviving spouse based on the children’s genetic
relationship with the decedent, and whether the decedent consented both to reproduce
posthumously and to support any resulting child. Of course, if the state inheritance statutes limit
the class of posthumous children to those in utero at the time of the decedent’s death or have
certain other requirements, those standards must be met and applied. The purpose of the state
intestacy laws and other state and individual interests might be considered as well.
(b) It is in the best interest of the children conceived after a parent’s death (by means
of artificial insemination or in vitro fertilization) that those children have a right to inherit from
10 UNIT SEVEN: PROPERTY AND ITS PROTECTION
in whole or in part.
their parents. There are three important factors to take into consideration in deciding this
question—the best interest of the children, the state’s interest in the orderly administration of
estates, and the reproductive rights of the genetic parents. The most important factor is the best
interest of the children. Generally, all children should be entitled to the same rights under the
law regardless of the circumstances of their conception. Among these rights is the right to inherit
from their parents.
(c) A child who is conceived after his or her parent’s death by means of artificial
insemination or in vitro fertilization should be allowed to inherit from the deceased parent if the
other parent establishes the genetic relationship with the decedent, and shows that the
decedent consented to reproduce posthumously and to support any resulting child. On the same
basis, a child who is conceived after his or her father’s death by means of a surrogate should
also be allowed to inherit from the deceased father. It is in the best interest of these children that
inheritance rights be granted.
