978-1285770178 Solution Manual BL ComLaw 1e SM-Ch31

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 If the entire will was revoked, however, then Marion Peterson would be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

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.