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CHAPTER 52
WILLS AND TRUSTS
ANSWER TO CRITICAL ANALYSIS
QUESTION IN THE FEATURE
INSIGHT INTO ETHICS—CRITICAL THINKING—INSIGHT INTO THE E-COMMERCE ENVIRONMENT
(PAGE 1020)
A Facebook game, Farmville, allows members to manage virtual crops together. Would there be any
benefit in being able to pass on to one’s heirs “the fruits of one’s virtual labor”? Why or why not? There
are two possibilities. (1) If an heir, such as a spouse or child or sibling, wishes to continue managing
virtual crops with the other members of the Farmville community, then inheriting the decedent’s crops
would have value. (2) If there are those who are willing to pay real dollars to enter FarmVille with a
large holding, then there are actual monetary benefits to be gained.
ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES
CASE 52.1—QUESTIONS (PAGE 1023)
THE E-COMMERCE DIMENSION
Did SFA and Bradford’s online offer of licenses for the commercial use of Monroe’s image have any
effect on the court’s decision in this case? Why or why not? No, the online offer of such property did not
influence the court’s decision. The principles at issue concerned a testator’s gifting of property that he
or she owns, or does not own, at the time of death. The availability of such property or related rights for
sale via the Internet did not alter these principles.
THE LEGAL ENVIRONMENT DIMENSION
456 UNIT TEN: PROPERTY AND ITS PROTECTION
How might the court have ruled if Monroe had phrased her residuary clause to clearly state an intent to
devise property she did not then own? (Hint: Can anyone—during or after their life—transfer property
that they do not own?) The court’s ruling would likely have been the same. Monroe—or any testator—
CASE 52.2—QUESTIONS (PAGE 1025)
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 re–
voked, 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
CASE 52.3—QUESTIONS (PAGE 1032)
THE LEGAL ENVIRONMENT DIMENSION
What are the elements of fraud? Which facts in this case support the court’s finding of fraud? The
elements of fraud are a misrepresentation of a material fact with knowledge of its falsity, intent to
induce another’s reliance on the misrepresentation, the other’s justifiable reliance, a causal connection
between the misrepresentation and an injury, and damages. Here, Viarengo knew that Jankowski
CHAPTER 52: WILLS AND TRUSTS 457
WHAT IF THE FACTS WERE DIFFERENT?
Suppose that by the time the court imposed a constructive trust on the joint accounts in this case, their
value had decreased by $100,000. Should the defendant have been liable for the loss? Why or why not?
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
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
458 UNIT TEN: PROPERTY AND ITS PROTECTION
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.
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 QUESTIONS AND CASE PROBLEMS
AT THE END OF THE CHAPTER
52-1A. Wills and intestacy laws
(Chapter 52—Pages 1021–1023 & 1026–1029)
(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 also
required to publish (declare) that the document is his or her last will and testament. (Such is not
52-2A. Specific bequests
(Chapter 52—Pages 1020–1021)
The usual answer is that under a strict interpretation of the will, unless Mendel made a codicil (changing
52-3A. QUESTION WITH SAMPLE ANSWER: Revocation of wills
(a) State laws vary on whether a will written and executed before marriage is revoked by the
marriage. Some states declare that the will is revoked by a subsequent marriage only if a child is born
out of that marriage. Under the Uniform Probate Code, a subsequent marriage does not revoke a will;
however, the new spouse is entitled to share the estate as if the 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 receive nothing. If the marriage does not revoke the will, Lisa
will probably receive one-half the estate under the laws of intestacy, and the balance will go to Carol.
52-4A. Intent requirement
(Chapter 52—Pages 1021–1023 & 1025)
The general rule is that unless a child is expressly excluded by a parent testator in the will, the child is
entitled to receive whatever portion of the estate he or she would be allowed under state intestacy
460 UNIT TEN: PROPERTY AND ITS PROTECTION
laws. Winters’s will expressly excluded Abraham, and if this will is declared valid, Abraham will receive
nothing. Also, a testator can revoke a prior will by the making of a new will. The new will must meet the
statutory requirements for validity. Thus, the new will can be challenged—in this case on the grounds of
the undue influence exercised by Julia, a nurse, over Winters. Here Abraham and the other children may
52-5A. Intestacy laws
(Chapter 52—Pages 1026–1028)
The Supreme Judicial Court of Massachusetts held that children who were conceived after their father’s
death could inherit from their deceased father if his wife—their mother—established their genetic
relationship with the decedent, and showed that the decedent consented both to reproduce
posthumously and to support any resulting child. The court explained that “bright-line rules are not
favored unless the applicable statute requires them. The Massachusetts intestacy statute does not.
Neither the statute’s ‘posthumous children’ provision, nor any other provision of our intestacy law limits
the class of posthumous children to those in utero at the time of the decedent’s death. On the other
hand, with the act of procreation now separated from coitus, posthumous reproduction can occur under
a variety of conditions that may conflict with the purposes of the intestacy law and implicate other
52-6A. Wills
(Chapter 52—Pages 1020–1021)
The court concluded that ownership of the plot passed to Julian and Laurie, who both appealed to a
52–7A. CASE PROBLEM WITH SAMPLE ANSWER: Wills
The court ruled that James’s purported revocation of his first will was not a “free and voluntary act” and
held that first will valid. His children appealed to the Georgia Supreme Court, which affirmed the lower
court’s ruling. The state supreme court noted that “[t]estamentary capacity exists when the testator has
52–8A. Intestacy laws
(Chapter 52—Pages 1026–1028)
A surviving spouse usually receives a share of the estate: one-half if there is also a surviving child and
one-third if there are two or more children. In this case, however, the prenuptial agreement provides
52-9A. Wills
(Chapter 52—Pages 1020–1021)
52–10A. A QUESTION OF ETHICS: Wills
(a) The requirements concerning the validity of a will are ensure that the testator was aware
of what he or she was doing when the will was executed. In other words, these requirements are
designed to prevent fraud. The testator must have testamentary capacity: he or she must be of legal age
and sound mind when a will is made. The “sound mind” element includes remembering, in the will,
family members and other persons for whom the testator has affection. Also, a will must distribute its
maker’s property according to his or her intent. Fraud or undue influence may be inferred when a will
ignores blood relatives in favor of non-relatives who were in a position to influence the terms. Other
requirements relate to form (a will must be in writing), the testator’s signature, and the number and
qualification of witnesses.
CHAPTER 52: WILLS AND TRUSTS 463
In this case, the most contentious element is likely J. Howard’s intent. Did he, as Vickie claimed,
intend to give her a portion of his assets in the form of a trust, or did his will as it existed at his death
express his true intent to leave all of his assets to his son, as Pierce claimed? If Vickie could establish J.
Howard’s intent to ensure her financial security and show that he was prevented from carrying out this
intent because, for example, he died before he could execute a new will, she would likely succeed in
obtaining a share of his estate. Otherwise, J. Howard’s will would likely be declared valid and Pierce
would inherit according to its terms.
In most states, if a testator marries after executing a will that does not provide for the new
spouse, which is likely what occurred here, on the testator’s death the spouse can receive the amount
that she would have received if the testator had died intestate. In fact, the Texas state court probating J.
Howard’s estate declared that his will was valid. The court awarded Pierce the entire estate.
(b) The Texas state court that declared J. Howard’s will was valid also held that it had
exclusive jurisdiction over all of Vickie’s claims against Pierce. On Pierce’s appeal of a ruling against him
in the federal bankruptcy court, which had been upheld by a federal district court, the U.S. Court of
Appeals for the Ninth Circuit cited the Texas state court’s holding. The federal appellate court held in
part that federal courts did not have jurisdiction to decide this case. Instead, the parties’ claims fell
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
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(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