01/21/2015 Introduction pg. 9-28
- 1540: Statute of Wills
·
gave decedent testamentary control over the
disposition of their real property (positive law)
·
cannot disinherit surviving spouse (most states)
- Hodel v. Irving (1987) SC:
unconstitutional “Taking” of “Indian Land” b/c Congress passed Act so land
would escheat (to the state)
-Ford v. Ford (CoA Maryland
1986)
·
Pearl murdered her mother and now wants the
property that her mother left for Pearl in the will
·
brother George says Pearl forfeited her
entitlement to property by killing their mother
·
Maryland does not have a “slayer’s statute” but
the CoA has ruled on 3 prior cases that has created a “slayer’s rule” à
Basis: perpetrators should not be enriched by their crimes
·
law: unless the murder was felonious and
intentional, the person who kills another can inherit if the homicide was
unintentional
·
apply to the killer and those claiming through
or under him
·
in this case Pearl was found to be insane so
that does not fulfill the felonious requirement
·
Is there an intent of grantor? Would the grantor have wanted their child to
still inherit if they killed her?
·
Slayer rule: deterrence, equity, testator’s
intent? Why make a distinction about mental capacity?
01/22/2015 Probate/Non-Probate
Transfers pg.45-64
Probate
Process: relatives of decedent getting formal legal document to establish
their title to the property
If
there is no will à
close relative will petition to be appointed as decedent’s personal
representative (look at local statute to see who has priority)
If
there is a will à
an executor has been named, they will petition for “letters testamentary” which
allows him/her to be the personal representative
-representative:
has the legal authority to act on behalf of the estate so they can execute
deeds and get funds from the bank
Probate:
when the representative proves that the will was properly executed and that all
persons who might contest the will have been provided notice
Gifts (non-probate transfer)
Gruen
v. Gruen (CoA NY 1986)
- son claims painting was gifted to
him by father, stepmother claims it was invalid
-stepmother’s argument: not a valid
gift because there was no formality (intent to give, delivery) Delivery is
evidence of intent, assumption that all gifts are irrevocable. Other argument is that the letters were
insinuating that father wanted to give the painting to son when he died,
however the letters did not follow the formal requirements for making a will so
the letters cannot be construed that way. (attempt to make a will that fails)
-stepmother cares if it’s estate
property because father left “all property to my spouse”
- SC: entered $2.5 mil damages for P
-1963: P’s father wrote a letter
saying that he was giving P the painting for his birthday but wanted to retain
possession of it during his lifetime, so the son got the vested remainder at
father’s death as a gift
- a gift can be made even if donor
retains possession b/c donor becomes a life tenant instead of an owner
- Court: what the father gave was
title with no right of possession until his death, so the painting did not have
to be physically handed over to constitute “delivery”
-law presumes acceptance by donee
-life interest expired at decedent’s
own death, so that interest did not pass through his probate estate
-even if father wanted to retract the
letters later and no longer wanted to give painting to son he cannot retract a
gift
^different from leaving painting
through will because wills are revocable
Gifts
Causa Mortis: when gifts are made in contemplation of death, they can be
taken back if the death does not occur
Joint
Interests with Right of Survivorship (non-probate transfer)
-when a joint tenant dies the transfer
of property to the surviving joint tenant is a non-probate transfer
-real property, bank accounts,
brokerage accounts etc.
Franklin
v. Anna National Bank (Appellate Court of Illinois 1986)
-in case of contested joint tenancy,
must look at decedent’s intent at the time of creating the joint tenancy,
whether he wanted the proceeds to pass to the survivor after his death
-b/c decedent attempted to change the
account from Mrs. Goddard to Mrs. Franklin it shows that he still believed that
the account was his own. He only allowed
them access to assure his access to his funds.
-Mrs. Goddard argues that she is the
joint owner of the bank account
-decedent didn’t mean to create a
right of survivorship, he just wanted the ladies to be able to get money out
for his medical bills
-life insurance proceeds do not pass
through probate estate if there is a directly named beneficiary
-revocable trusts also avoid the
probate estate
-intestate succession statute should
be made to effect the probable intent of the decedent
-if there is an invalid will the
intestacy statute will be used
-if after a valid will is executed and
there is leftover property that will distributed using the intestacy statute
-A person can only contest if:
·
the contestant would be part of the estate by
intestate succession, or
·
if had been the beneficiary of a prior will
-rules
of “descent”: rules for intestate succession to real property (heirs at
law)
-rules
of “distribution”: rules for intestate succession of personal property
(next of kin)
-Surviving
Spouse: spouse has lifetime interests in the real property and they are
entitled to a distribution of the personal property
-assumption
that decedent wants their spouse to get the bulk of their estate, unless there
are children from outside their marriage
-2nd
assumption: surviving spouse will provide for their own children
-in many
states domestic partners or partners to civil union have the same inheritance
rights as surviving spouses
-Descendants
v. Collateral Relatives:
·
Descendants: direct lineal descendants take to
the exclusion of collateral relatives (children, grandchildren, etc). Many
statutes use the word “issue” for specifically children even though the
established meaning includes grandchildren and great-grandchildren
·
Collateral relatives: brothers and sisters,
nieces and nephews, cousins, and all other relatives
Distribution Among Collaterals:
if there is no spouse or descendants then the decedent’s parents take. Might not be fair to siblings
-if parents are deceased: descendants
of the parents
-descendants (children) àdecedent’s
parents àdescendants
of parents à
descendants of grandparents (Uniform Probate Code intestacy statute)
-some state statutes use “Degree of
kinship”, which use the Table of Consanguinity to determine the degrees of
separation
-common law: if there are no living
close relatives the closest living relatives are entitled to take
^”Laughing Heir Statute”: precludes
too distant relatives from taking
-UPC 2-105: “laughing heir statute”
(?)
Inheritance by Those Not Related By
Blood:
-almost all state intestacy statutes
exclude relatives by marriage
-step-children are not considered
descendants, however some states give them some limited rights
-adopted children have the same
inheritance rights as biological family members
Estate
of Goick, SC of Montana (1996)
- 12/1990: petition for dissolution of
Michael and Barbara’s marriage
- 04/25/1991: dissolution proceeding
hearing, agreed on all issues except division of household goods which were to
be settled in 2 weeks
- 12/25/1991: Barbara filed motion to divide
personal property of marriage
- 12/19/1991: DC Judge said they did
not sign the settlement agreement from 4/25
- 11/30/1992: Michael died
- 12/02/1992: Barbara moved to dismiss
the divorce proceeding
- 12/03/1992: order issued dismissing
divorce proceeding
- 12/07/1992: Barbara filed petition
for adjudication of intestacy claiming she was the surviving spouse so she
should be the PR
-Michael’s mother, brother, and sister
object to the petition and claim that Barbara is an ex-wife
ISSUE 1: Do decedent’s mother, brother
and sister, lack standing to appeal?
- Barbara: appellants are not heirs to
the estate so they would not be injured
- Wanda (mother) filed a creditor’s
claim against the estate so she has priority for appointment as PR. Brother and sister do not have standing since
they are neither heirs or creditors.
^However she cannot contest the
distribution of the estate b/c she doesn’t not have standing (no personal stake
in the estate)
-If Wanda won with the argument that
Barbara is not a surviving spouse then Barbara would not be the PR AND wouldn’t
get a distribution
-if she wasn’t a surviving spouse and
had a divorce she wouldn’t have gotten her share of the marital property
through divorce, but in this case she didn’t get that b/c the divorce was never
finalized so court did not want her to end up with nothing
ISSUE 2: Did the DC err when it
granted summary judgment concluding that Barbara was the surviving spouse?
-there was only an oral agreement by
the judge stating that they were divorced and Michael and Barbara saying they
were divorced, there was no divorce decree or final judgment therefore Barbara
is the surviving spouse
-Wanda claims equitable estoppel: must
show that Michael relied to his detriment on the representation of divorce and really
thought they were divorced
-however both parties did not sign the
04/25 settlement and Michael’s attorney testified that Michael did not believe
the divorce was final
ISSUE 3: Wanda claims Barbara had a
conflict of interest b/c she directly benefits
-court: under Montana law if there is
no appointed PR by will then the surviving spouse has priority for appointment
-the children through the
guardian also agreed to Barbara’s appointment
