Wills and Trusts

The legal relationship between and or among persons with relations to a thing.

Statute of intestacy

1. Scheme - what is the state's division plan for who gets what
2. Status - who qualifies as a spouse/child
3. Alteration - how can the scheme be altered (a will is the easiest way).

1. How to MAKE it in compliance with the applicable law so it is valid.
2. How to REVOKE
3. What physical documents comprise the will.
4. How the will is construed
5.Challenging provisions

A voluntary transfer of property rights with donative intent without consideration from the transferee accompanied by the best possible delivery under the circumstances and acceptance by the transferee.

1. Testimentary intent
2. validity /formalities / medium
3. death

No, it is a matter of public record.

Simply say "I bequeath all my personal property to X."

The ability to pass on one's property rights to the person or persons one desires.

Those who have not reached the age of majority.

O'connor says it is a cherished aspect of anglo american law.

no

facts: Lots of forced intestate succession has divided Indian lands into useless tracts that cost more to administer than they are worth. Indian Land Consolidation act dissolves all individual interests below a certain level and leaves them to the tribe.
Rule: 5th amendment
Analysis: Any attempt to totally abrogate the right to descent and devise is Unconstitutional.

Not accoarding to Guzman. They do not go so far as to directly state that there is a Constitutional right to testamentary freedom. There are limits to testamentary freedom.

Rule: Constitutional restrictions do not apply to wills b/c there is no state action.

Difficult. Partial restrictions will probably not be overturned.

Rule: you cannot pass it in your will if you do not own it when you die.

it is distributed to distributees

it descends to heirs

A legacy or bequest that passes to a legate.

A devise that is passed to a devisee.

it is administrated by an administrator.

All of them
Pure Per Stirpes
Modified Per Stirpes
1990 UPC

Yes, courts of equity will permit this if there is a contract with adequate consideration.

predeceased

They are both early transfers of an expectancy. Release gives it to an ancestor assignment gives it to anyone else.

All transfers of expectancy must be fair: for adequate consideration.

You have an assurance of at least that amount. The difference between this and a release is that you do not have to give it back to the estate for division.

An intervivos gift that is charged against the advancee's intestate share. Does not apply to testate estates.

1. determine the hatchpot: the estate + any qualified advances
2. Distribute the hatchpot under the relevant intestacy scheme.
3. Subtract the amt of any qualified advance from any advancee's share. if the advance exceeds that share, disregard both the advance and that advancee, and start over.
4. total the amt distributed = estate

No, Under UPC spouse takes all, so it would only matter at the demise of the spouse.

A spouse gets half under OK.

Anything that is intended as an advance and written up as such.

All lifetime gifts are advances -or- no intervivos gifts equal advances.

will
neg will
release and assign
advance
disclaimer

Upon disclaimer the decedent's estate is treated as though disclaimant predeceased decedent.

CBJ gets 100% of JFK's estate under the UPC and under Oklahoma Law.
[I think this is wrong]

Where title to property or devoution thereof depends on priority of death, and there is no sufficient evidence that the persons have died other than simultaneously., the property of each shall be disposed of as though [s/he] survived [the other].

Facts: Tylenol cyanide poisonings husband and wife die from same poistoned batch. Wife is kept on life support after husband but there is evidence she was brought in brain dead.

rule: This case hinged on procedure. The challenger had to show the weight of the evidence was against the trial court finding. It was not.

1. 5 days (120 hours)
2. Clear and convincing evidence that she/he survived by 5 days.

No, we are a survival by an instant state.
(Perry case)
We also require sufficient (preponderance ) rather than CC

Total cessation of circulatory and pulmonary function.

Total cessation of all brain activity.

A legal/lawful marriage to the decedent at the decedents death.

Yes, it is a marriage in states where it is allowed. (not constructive marriage)

From and through in 4 lines: 2 Bio parents; 2 Adopted parents.

If the adopter was the gifter, adopted child takes part. If adopter was not gifter then the adopted child did not.

facts: Adult trust fund baby adopts his wife.
rule: statutes should not be given a construction that does violence to the [ ] extent that they violate the rule and prevent one from passing on his property in accord with his wishes.

facts: woman has twins with husband's banked sperm.
rule

bio kid
adopted kid
kid post death (pregnant when father died)
frozen sperm

don't want people to profit financially from their illegal acts.

1. Probate estate
2. Non-Probate estate

Joint Tenacy/ TE
Life insurance
Pension
Trust/Revokable

1. Creditors
2. Beneficiaries/Heirs
3. Title Clearing

1. Guardianship
2. Conservatorship
3. Custodianship
4. Trusts

3 witnesses only 1 dissinterested

Rule:

husband and wife sign each others wills
rule: hyperformalism
holding: both wills invalid

facts: same deal, but there is a minor child who will take in probate and guardian will not waive off.
rule: testimentary intent
holding: It is very clear what the testimentary intent is and we will not subvert it with hyperformalism.

Effectuate testementary intent

Channeling
Cautionary
Protective
evidentiary

No, but it is good solid practice. It also creates a presumption that the requisite requirements of the will were met.

Creates an irrebuttable presumption of validity

OK section 55
Every will other than holographic or

The date must be in the testators handwriting.

Subsequent instrument
Physical act
Operation of Law (change in circumstances)

1) Revocation must be based upon a mistake of fact or law.
2) DRR better effectuates testators intent.

Giving legal effect to an invalid will because the testator believed it was effective.

1) Automatic revival (minority of jurisdictions follow this)
2) No Revival (intestacy)
3) Conditional Revival ()

facts: Widow without children dies. She had two wills valid. The second will, she ordered destroyed, allegedly believing the first will would become valid again.

issue: Was the trial court finding that the deceased was under the MISTAKEN belief that she was reinstating the first will correct.

rule: destruction must have been with the express intent of reinstating the former will.

OK 106 - Destruction of later does not revive former w/o (written) intent to renew or republication.

UPC - presumes against reviving former unless later had partially revoked former.

1) nature and extent of his her Property
2) natural Objects of bounty (largess)
3) Disposition being made
4) Relating elements to one and other
5) forming Orderly desire as to disposition.

irrational belief that adheres to not equal all reason [and /n evidence to the contrary and that springs from a diseased mind.]

1) Lack of formalities
2) Lack of Testamentary intent
3) lack of testamentary capacity
4) undue influence
5) fraud coercion, duress

1. intestacy schemes for OKLa
2. Validly Making a will : Okla and UPC
3. Rules and Policy analysis

she wants this.

A belief to which the testator adhers against all reasonable facts to the contrary and that springs from a diseased mind.

Legal

The insane dillusion must effect a disposition in the will in order to do away with that provision.

material effect versus potential effect.

facts: Woman cuts off the cousins in her will and favors the Nat'l Womens Party.
Rule: Trial Judge says she had insane delusions about the male.

It begs the question of "who is entitled to property."

1. Testamentary Capacity
2. Undue Influence.

Here we consider whether the testamentary freedom of the testator has been overborne, rather than did the person have testamentary capacity.

1. Circumstantial
2. Presumption of Undue Influence

1. Testator was suseptable
2. Motive
3. Disposition to unduly influence (Reputation Evidence)
4. Coveted result actually occured

1. Confidential (lawyer client) Relationship
2. Suspicious Circumstances

Unnatural disposition
sudden and significant change.

1. integration
2. incorporation by reference
3. republication by codicil
4. Acts w/ independent significance

Any pages
1) actually present at execution and
2) intended to be part of the will.

1. In existence at execution (not presence)
2. intent to incorporate
3. reasonably sufficient description of the document

If there is a codicil in a will the will is published as of the date of the codicil

Jeremy Bentham

Hodel v. Irving

one who lacks understanding or capacity to make or communicate responsible decisions

Sandra Day O'Connor in Hodel

1. Document present at the time of execution
2. Testator Intended to be included in the will.

1. in Existence as of execution
2. reasonable description of the doc
3. Intended to be added to the will at the time.

1. TI

incorporation of acts outside the control of the testator vitiates testamentary intent.

- "all my money to whoever julie leaves hers to"
vs
- all my law books to whichever of my children go to law school

i. Go to child generation NO MATTER WHAT
ii. Count # of live roots (not live people) in THAT GENERATION
iii. Allocated a share to each root and divide down, if necessary

a. Modified per stirpes tries a little harder for horizontal equality.
b. Steps
i. Go to 1st generation w/ atleast on living member
ii. Count # of live roots (not live people) in THAT GENERATION
iii. Allocate a share to each root and divide down, if necessary

a. Steps
i. Go to 1st generation w/ atleast one living member
ii. Count # of live roots (not live people) in THAT GENERATION
iii. Allocate a share to each living member in that generation
iv. Combine the remainder
v. Allocate a share of that remainder to each qualified taker at next generation
1. (Must be a qualified taker. Can’t take if parent is alive)
vi. Repeat if necessary

1. Whole generation dies off
2. Live root dies off
3. top of root dies but root stays live.