FACTS: John Ramsey (Sr.) left the bulk of his estate to Melody Taylor, a parmour. He specifically noted he
was excluding his sons and grandsons. At the time of the will execution he had cancer and was in
pain. He died from an overdose of morphine. John, Jr. challenged the will.
(1) For undue influence
(2) Felonious killing of testator by a beneficiary (Melody)
The trial court refused to admit the will and Melody appealed.
ISSUE: Was the will valid or had there been undue influence?
REASONING: There was a confidential relations and the question was whether the suspicious circumstances,
including Melody helping, secrecy and haste, change in attitude, unnatural or unjust gift, change in
plans, and susceptibility to influence. However, John indicated he knew what he was doing and
why.
DISCUSSION POINTS: Have the students discuss undue influence in will-making using the Ramsey v. Taylor
case.
DISCUSSION POINTS: Ethics & the Law
Preparing Your Client’s Will When You’re the Beneficiary
Tomlan (Respondent) violated his duty to his client by (1) failing to insist that she obtain independent counsel, (2)
facilitating transfers of her assets to himself by himself, and (3) saying virtually nothing of the ramifications to her
estate. Respondent violated duties to the public and the judicial system by his undue delay in administering the Rice
estate, concealment of estate assets in his possession, and ex parte communication with Judge Costine. Respondent
accepts the findings that he breached these duties.
In his defense, however, respondent underscores that he was “like family” to Rice and genuinely believed that, given
their long, close friendship and discussions about her affairs, the transfers to joint and survivorship accounts fulfilled
her ambitions for her fortune. Though Rice experienced some intermittent diminished mental capacity, respondent
also insists that she continued to function with purpose and decisiveness during her last years and, as a result,
conveyed unblemished title when she signed all the papers necessary to complete the transfers. Respondent thus
claims that he did not exercise undue influence or engage in overreaching, the evils that DR 5-101(A)(1) exists to
prevent.
“Elements of undue influence include ‘a susceptible testator, another’s opportunity to exert it, the fact of improper
influence exerted or attempted, and the result showing the effect of such influence.’” Krischbaum v. Dillon (1991), 58
Ohio St. 3d 58, 65-66, 567 N.E. 2d 1291, quoting West v. Henry (1962), 173 Ohio St. 498, 501, 20 O.O. 2d 119, 184
N.E. 2d 200. Because all these elements are present when a lawyer receives a testamentary gift from a client
unrelated by blood or marriage through a will that the lawyer prepared, a presumption of undue influence arises. Id. at
paragraph one of the syllabus. The presumption, as well as the prohibition against a lawyer’s receiving such gifts
through a will or trust in DR 5-101(A)(2), serves to protect the high level of trust and confidence that the
attorney-client relationship demands in fulfilling a client’s testamentary wishes:
“A client’s dependence upon, and trust in, his attorney’s skill, disinterested advice, and ethical conduct
exceeds the trust and confidence found in most fiduciary relationships. Seldom is the client’s dependence
upon, and trust in, his attorney greater than when, contemplating his own mortality, he seeks the attorney’s
advice, guidance, and drafting skill in the preparation of a will to dispose of his estate after death. These
consultations are often among the most private to take place between an attorney and his client. The client
is dealing with his innermost thoughts and feelings, which he may not wish to share with his spouse, children
and other next of kin.”
“Because the decisions that go into the preparation of a will are so inherently private, and because, by
definition, the testator will not be available after his death, when the will is offered for probate, to correct any
errors that the attorney may have made, whether they are negligent errors or of a more sinister kind, a client
is unusually dependent upon his attorney’s professional advice and skill when he consults the attorney to
have a will drawn. The client will have no opportunity to protect himself from the attorney’s negligent or
infamous misconduct.” Krischbaum, 58 Ohio St. 3d at 62-63, 567 N.E. 2d 1291.
As the board observed, considerations underlying a presumption of undue influence equally apply to situations in
which lawyers obtain an interest in client assets by preparing other instruments that transfer the interest in
anticipation of the client’s death. In Disciplinary Counsel v. Galinas (1996), 76 Ohio St. 3d 87, 666 N.E. 2d 1083, we
suspended a lawyer from practice because he had prepared a will for an unrelated client that named the lawyer as a
beneficiary and had also transferred client assets to himself through joint and survivorship accounts. Though we
focused in that case mainly on the impropriety of giving such gifts through testamentary devise rather than through
inter vivos transfers, we referred to the presumption of undue influence because the clients in both situations are
contemplating their own mortality and thus are peculiarly susceptible to the influence of their counsel.
DISCUSSION POINTS: Thinking Things Through
Close Enough for a Will?
This is a situation that has just about every aspect of wills and probate covered:
1. Capacity would be raised because she was so close to death.
2. The individual writing out the will for her stood to benefit from the will.
3. There were no witnesses, but if it qualifies as a holographic will, then it would be acceptable in form.
However, it was not in her handwriting, although she directed it.
4. Her heirs were excluded from the provisions of the will.
The court found the will to be valid. There were lots of questionable circumstances, but her intent was clear as was
her mind and her determination. She relied on the only friends who came to see her to get the will done and they
were her beneficiaries as a result.
D. When administration is not necessary
E. Appointment of personal representative
F. Proof of claims against the estate – state statutes provide requirements
G. Construction of will – the plain meaning is used
H. Distribution under the will
1. Legacies
a. Abatement of legacies
i. Residuary
I. Intestate distribution of an estate
1. Plan of intestate distribution
a. Varies from state to state
b. Spouses
c. Lineals
CASE BRIEF: In re Edwards
991 N.Y. S. 2d 431 (N.Y. A.D. 2014)
FACTS: Deanna Edwards Palladino and Brandon Palladino were high school sweethearts who married in
2007. On December 17, 2008, Brandon killed his mother-in-law, Dianne Edwards (hereinafter the
decedent), by strangling her to death. The decedent’s will bequeathed her entire estate to Deanna,
her only child. In October 2009, Brandon was indicted for the crime of murder in the second degree
for causing the death of the decedent. Deanna, who was not criminally charged in connection with
the decedent’s death, stood by Brandon and believed in his innocence. In February 2010,
approximately 14 months after her mother’s death, Deanna died intestate of an accidental drug
overdose. Although the decedent’s will had been admitted to probate in October 2009, none of the
decedent’s estate had been distributed to Deanna prior to Deanna’s death. Deanna was survived
by one distributee, Brandon. Brandon designated his mother, Donna DiRusso, as the administrator
of Deanna’s estate. According to DiRusso’s petition for letters of administration, Deanna’s estate
consisted only of funds received as the beneficiary of the decedent’s retirement plan and the
expected inheritance from the decedent.
On October 12, 2010, approximately 10 months after Deanna’s death, Brandon pleaded guilty to
manslaughter in the first degree, in connection with the death of the decedent. During the plea
proceeding, Brandon admitted to entering the decedent’s home on December 17, 2008, for the
purpose of taking her jewelry. While Brandon was in the decedent’s bedroom taking jewelry from
her jewelry box, the decedent returned home and the two got into a physical fight. Brandon placed
the decedent in a choke hold and squeezed as the decedent was resisting and scratching him.
Brandon admitted that he intended to cause the decedent serious physical injury, but asserted that
he did not intend to kill her. However, Brandon subsequently moved for leave to file a late notice of
appeal from the judgment of conviction, and his motion was granted by this Court by decision and
order dated April 4, 2012.
The decedent’s estranged sister, Donna Larsen, submitted objections to the account, arguing that
Brandon forfeited his interest in any property which would pass to him from the decedent’s estate
through Deanna’s estate, due to his conviction for causing the decedent’s death.
DiRusso moved to dismiss the objections, and Larsen cross-moved for summary judgment on the
objections. In a decision and order dated March 28, 2012, the Surrogate’s Court denied DiRusso’s
motion and granted Larsen’s motion in part. DiRusso appealed.
ISSUE: Can a son-in-law who killed his mother-in-law inherit his mother-in-law’s estate through his
deceased wife (her daughter)?
REASONING: The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this
State’s common law. In 1889, the Court of Appeals decided the seminal case of Riggs v. Palmer,
115 N.Y. 506, 22 N.E. 188. In Riggs, a grandson, who had intentionally killed his grandfather in
order to ensure his inheritance, was prevented from inheriting under the grandfather’s will.
The issue here is whether the Riggs doctrine may be extended to prevent a wrongdoer from
indirectly profiting from his or her own wrongdoing. More specifically, we are asked to determine
whether Brandon may inherit assets of the decedent’s estate indirectly through Deanna’s estate.
Here, there is a clear causal link between the wrongdoing and the benefits sought. But for
Brandon’s killing of the decedent, the estate of Deanna would not likely include any assets from the
decedent’s estate. Deanna’s “intervening estate” should not be used to allow Brandon to profit from
his unlawful killing of the decedent.
If this Court were to allow Brandon to inherit the assets of the decedent’s estate through Deanna’s
estate, it would be rewarding Brandon’s criminal behavior. This, in turn, would “allow [the court] to
be made the instrument of wrong”.
Affirmed.
h. Per capita vs. per stirpes – equal vs. by right of representation, use example in book
i. Death of distributee after decedent
j. Simultaneous death – Uniform Simultaneous Death Act: as if each survived the other
III. What is a Trust and How is it Created and Administered? (See Figure 51-3)
A. Definitions
1. Settlor: property owner who creates the trust
2. Trustee: person to whom property is transferred in the trust
3. Beneficiary: person for whose benefit the trustee holds property
B. Creation of trusts
1. Varies from state to state
2. Consideration – not required
3. Legality of purpose
9. Acceptance of trust
C. Nature of beneficiary’s interest
1. Discuss legal title to trustee and equitable title to beneficiary
2. Discuss spendthrift trust. Students are usually fascinated with trusts containing a spendthrift clause.
D. Powers of trustee
1. Powers are given by law or in the trust instrument
2. Remind the students that the trustee is a fiduciary and owes the fiduciary duties that were discussed in
detail in the agency section of the text. An item of major concern for students is usually the problem of
the beneficiary thinking that the trustee is not doing a good enough job of managing the trust. Discuss
E. Duties of trustee
1. Performance
2. Due care
3. Loyalty
F. Remedies for breach of trust
1. Monetary judgment for loss
2. Injunctive relief
G. Termination of trust
1. By its terms
2. Impossibility
ANSWERS TO QUESTIONS AND CASE PROBLEMS
1. Capacity. The fact that a testator is depressed during the final stages of a terminal illness and expresses a
desire to pass away did not mean that he lacked capacity. Also, where doctor’s testimony is contradictory, the
presumption rests with the doctor who has testified to sufficient capacity. The fact that Brener constantly
complained that he did not understand the language in the wills and trusts did not mean that he lacked
2. Capacity to make will. The court held that there was sufficient mental capacity – the mind need not be in perfect
shape and the disposition logical in order to have testamentary capacity. The excerpt below summarizes the
court’s ruling in favor of admitting the will to probate:
The jury in this case also heard testimony about Pat’s health problems, including testimony about a
1983 electric shock accident, his headaches, and his declining health in 2005. Brenda conceded that
Pat performed his daily work after the accident; he worked cattle on horseback. Members of Pat’s family
testified that Pat possessed all his mental faculties after the accident, noticing no change in his daily
Brenda argues that the evidence that Patricia adduced is legally insufficient. She claims that, because
no evidence demonstrates that Pat discussed his children or the approximate nature of his property with
the witnesses on the date he executed his will, Pat lacked the capacity to make a judgment about
bequeathing his property. She asserts that Pat did not know who his children were because his will
We hold that the evidence is legally sufficient to support the jury’s finding of testamentary capacity. See
Collins v. Smith, 53 S.W. 3d 832, 843 (Tex. App. Houston [1st Dist.] 2001, no pet.) (testimony that
testator was of sound mind and knew what he was doing when he executed his will was sufficient to
3. Revocation of will by act of testator. No. In order for physical destruction to constitute revocation, the destruction
must be made with the intent to revoke the will. The second will was destroyed with the intent to destroy the
Authors’ Comment: Practical problems may arise in seeking to probate the second will. These problems will not
be significant if there is a second copy of that will and there are credible witnesses who can testify to its identity
4. Will contest. No proof of undue influence existed. The fact that one child was disliked without cause or that there
was an unequal distribution of property among children does not show a lack of testamentary capacity or prove
5. Revocation by act of testator. Under the circumstances, it was proper to conclude that the physical tearing of the
will was done by Field. The preservation of the balance of the will therefore justified the conclusion that the
6. Signature on will. No. A will must be signed at the end. Signing on the envelope was not signing at the end, even
7. Capacity of the testator. Yes, the will was entitled to probate. The physical and psychological condition of the
8. Revocation of will. Yes, the will was revoked. The fact that it was written in ink did not prevent revocation by a
pencil line through each sentence and the signature of the will. In view of the fact that the will was found in the
Authors’ Comment: Ask your class whether it is not possible that an individual not mentioned in the will might
draw pencil lines throughout portions of the will at the time of the decedent’s death, knowing that this individual
9. Witnesses; execution of will. The students should discuss the differing state views on interested parties as
witnesses. In some states, the will is invalid. In others the witnesses can only take what they would have taken
10. Will contests; testamentary capacity. The children would need to establish either testamentary incapacity or
11. Revocation. The implied language of the Florida statute requires the intention of destruction of the original will or
The law requires that the testator destroy the document that has been executed according to the law. What the
testator destroyed here was a document that was an exact copy of the fully executed original codicil and was in
Revocation by act of the testator can also occur by the creation of a subsequent testamentary document, if that
document declares the earlier will or codicil to be revoked. However, if the subsequent testamentary document
12. Trusts; duties. She can ask for an accounting of the trust accounts, funds and management. If Art has used any
of the trust funds for personal reasons, it is a breach of his fiduciary duties as a trustee and he is terminated and
13. Murder; inheritance. No, a murderer cannot inherit property from his victim because public policy dictates that
14. Distribution of estate. Under per capita, each child and grandchild gets one-fourth of the estate because they all
15. Trusts; accounting. A trustee is always obligated to account to the beneficiary. In this case, particularly because
the father was a lawyer, the duty was beyond just that of a trustee. The court found the father in civil contempt,
LAWFLIX
Melvin and Howard (1980) (PG)
An interesting look at the difficulty of establishing the validity of an eccentric’s will particularly when the provisions of
that will defy conventional notions of proper distribution of one’s largesse upon death.
management system for classroom use.