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

01/26/2015 Intestate Succession, p.65-85, Problems

-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

-2^nd 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