Failure of Gifts by Will
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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Lost Wills: the Wisconsin Law, 60 Marq
Marquette Law Review Volume 60 Article 3 Issue 2 Winter 1977 Lost Wills: The iW sconsin Law Robert C. Burrell Jack A. Porter Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Robert C. Burrell and Jack A. Porter, Lost Wills: The Wisconsin Law, 60 Marq. L. Rev. 351 (1977). Available at: http://scholarship.law.marquette.edu/mulr/vol60/iss2/3 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. LOST WILLS: THE WISCONSIN LAW ROBERT C. BURRELL* and JACK A. PORTER** I. INTRODUCTION The law of Wisconsin is well settled that once a will has been validly executed and has not been revoked, it may be admitted to probate even though the original copy of the will cannot be located at the death of the testator.1 Wisconsin Statutes section 856.17 provides as follows: Lost will, how proved. Whenever any will is lost, de- stroyed by accident or destroyed without the testator's con- sent the probate court has power to take proof of the execu- tion and validity of the will and to establish the same. The petition for the probate of the will shall set forth the provi- 2 sions thereof. Therefore, where the testator had a will which was valid at the time of execution but which cannot be located upon the death of the testator, the statute, in effect, prescribes the procedure for establishing that the will has not been subsequently re- voked by the testator. -
Shattering and Moving Beyond the Gutenberg Paradigm: the Dawn of the Electronic Will
University of Michigan Journal of Law Reform Volume 42 2008 Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will Joseph Karl Grant Capital University Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Estates and Trusts Commons, and the Science and Technology Law Commons Recommended Citation Joseph K. Grant, Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will, 42 U. MICH. J. L. REFORM 105 (2008). Available at: https://repository.law.umich.edu/mjlr/vol42/iss1/4 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. SHATTERING AND MOVING BEYOND THE GUTENBERG PARADIGM: THE DAWN OF THE ELECTRONIC WILL Joseph Karl Grant* INTRODUCTION Picture yourself watching a movie. In the film, a group of four siblings are dressed in dark suits and dresses. The siblings, Bill Jones, Robert Jones, Margaret Jones and Sally Johnson, have just returned from their elderly mother's funeral. They sit quietly in their mother's attorney's office intently watching and listening to a videotape their mother, Ms. Vivian Jones, made before her death. On the videotape, Ms. Jones expresses her last will and testament. Ms. Jones clearly states that she would like her sizable real estate holdings to be divided equally among her four children and her valuable blue-chip stock investments to be used to pay for her grandchildren's education. -
G L O S S a R Y
G L O S S A R Y A Administrator: A court appointed person or corporation in charge of managing the estate of a person who dies without leaving a will. Administrators have the same duties as Executors. In Minnesota, the administrator or executor is called the Personal Representative. Affiant: A person who makes an oath or affirmation and acknowledges the same in writing. In Minnesota this is usually done before a notary public. Affidavit: A voluntary written statement of facts confirmed by the oath or affirmation of the affiant. Affidavit of Collection of Personal Property: A sworn, notarized statement, used to collect assets of a small estate without going through the probate process. (aka Affidavit of a Small Estate). Agent: A person authorized by another to act for him. AKA: Also Known As (also lower case: aka). Amendment: A change or modification. See Codicil. Ancestor (an Ascendant): A deceased relative such as a parent or grandparent from whom one is descended. Ancillary Administration: A secondary administration in a state where the decedent owned property and which is not the state where the decedent was domiciled. Annuity: The right to receive fixed sums of money at regular intervals. Appoint: To designate and empower particular person(s) with authority to perform specified duties. Appraisal: An evaluation by disinterested and qualified persons as to the value of assets. Assets: All property of a person, corporation or estate of a decedent; real or personal, tangible or intangible. Attorney-in-fact: A person with the power granted under a power of attorney. B Beneficiary: An entity who benefits from the act of another. -
47 VICT 1883 No 2 Guardian, Trust, and Executors Company
I47 VIOT. Guardian, Trust, and Executors [1883, No. 2. 401 Oompany. New Zealand. ANALYSIS. Title. 12. Voluntary winding-up of Company or disposal Preamble. of shares may be restrained by Supreme 1. Short Title. Court or Ju~e. 2. Company may act a.s executor ud obtain 13. Moneys remaining unclaimed in the hands of probate. the Company for five yeairs to be paid into 3. Court to act upon affidavit of Director or the Public Account. Manager in applications for probate. 14. Shareholders to be liable to contribute £5 per <i. Assets of Company to be liable for proper share over and a.bove their ordinary liability admiDistration of estates. on the shares. 5. Company may be appointed trustee, receiver, 15. Statement of assets and liabilities of Company or committee of estate under Acts relating to be gazetted half-yearly. to lunacy, bankruptcy, &c. 16. One-third of the Directors to retire annually. 6. Company may act under power of attorney by 17. Company in general meeting to 1ill up vaoa,ted Manager and any Director, or by two offices. Directors. 18. Casual vacancy may be 1illed up by Direotors. 7. Manager may attend on behalf of Company, 19. The shareholders always to be domioiled in the and shall be personally responsible to Court. colony. 8. Company to be paid a commission on moneys 20. Incorporation and powers of Company, except. received. so far as specifically altered., to remain. 9. Company may be removed from office by 21. Act not to preclude other companics from Court. applying for similar powers to tho~l' con· 10. -
Glossary.3D 5/6/2008 13:55 Page 581
21764_24_glossary.3d 5/6/2008 13:55 page 581 Glossary 401(k) plan A company-sponsored retirement plan of a dead person whose executor (person chosen to in which an employee agrees either to take a salary hand it out) has died. Also called administrator de reduction or to forgo a bonus to provide money for bonis non or administrator d.b.n. retirement. administrator pendente lite Temporary administra- A tor appointed before the adjudication of testacy or intestacy to preserve the assets of an estate. abates 1. Destroy or completely end. 2. Greatly lessen or reduce. administrator with the will annexed (Latin) “With the will attached.” An administrator who is adeemed Take away. appointed by a court to supervise handing out the ademption 1. Disposing of something left in a will property of a dead person whose will does not before death, with the effect that the person it was name executors (persons to hand out property) or left to does not get it. 2. The gift, before death, of whose named executors cannot or will not serve. something left in a will to a person who was left it. Also known as administrator w.w.a., administrator cum testamento annexo, and administrator c.t.a. administrator A person appointed by the court to supervise the estate (property) of a dead person. If administratrix Female appointed to administer the the supervising person is named in the dead estate of an intestate decedent. ’ person s will, the proper name is executor. advance directives A document such as a durable administering an estate Settling and distributing the power of attorney, health-care proxy, or living will estate of a deceased person. -
Wills--Deceased Residuary Legatee's Share Held Not to Pass by Way Of
St. John's Law Review Volume 38 Number 1 Volume 38, December 1963, Number Article 11 1 Wills--Deceased Residuary Legatee's Share Held Not to Pass by Way of Intestacy Where It Is Clearly Manifested That Surviving Residuary Legatees Should Share in the Residuum (In re Dammann's Estate, 12 N.Y.2d 500 (1963)) St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ST. JOHN'S LAW REVIEW [ VOL. 38 argument against such an extension was rejected. 52 Likewise, the presence of a compensation fund for prisoners was held not necessarily to preclude prisoner suits under the FTCA.53 The Court found the compensation scheme to be non-comprehensive.5 4 The government's contention that variations in state laws might hamper uniform administration of federal prisons, as it was feared they would with the military, was rejected. Admitting that prisoner recoveries might be prejudiced to some extent by variations in state law, the Court regarded no recovery at all as a more serious prejudice to the prisoner's rights.55 In this connection, it is interesting to consider the desirability of spreading tort liability in the governmental area.5" The impact of the principal case is, in some respects, clear. -
The Personal Representative's Power to Sell Realty in Virginia
William & Mary Law Review Volume 15 (1973-1974) Issue 4 Article 8 May 1974 The Personal Representative's Power to Sell Realty in Virginia Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Estates and Trusts Commons Repository Citation The Personal Representative's Power to Sell Realty in Virginia, 15 Wm. & Mary L. Rev. 949 (1974), https://scholarship.law.wm.edu/wmlr/vol15/iss4/8 Copyright c 1974 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr COMMENT THE PERSONAL REPRESENTATIVE'S POWER TO SELL REALTY IN VIRGINIA At common law, tide to personal property passed to an executor or administrator upon the death of the owner, while tide to realty vested immediately in the decedent's heirs or devisees.' During the period of administration, the personal representative's control over personalty was, and under present law remains, analogous to that of a trustee, there being few restrictions upon the power to dispose of the property for the benefit of the estate. With respect to realty, however, a personal representative at common law had neither tide nor power to sell. Two general exceptions to the common law rules have evolved to expand the personal representative's power ovex realty. First, realty may be subjected by statute to the payment of debts of the estate when the personalty is insufficient for that purpose. Second, and more sig- nificantly, an executor may sell realty when vested with such power by the will.3 This Comment will examine the development and present status in Virginia of these exceptions to the general rule against sale 'of realty by a personal representative and will suggest statutory reforms designed to bring Virginia law more in line with that in other jurisdic- tions in reflecting modem conditions. -
Ademption by Extinction: Smiting Lord Thurlow's Ghost
ADEMPTION BY EXTINCTION: SMITING LORD THURLOW'S GHOST John C. Paulus* INTRODUCTION Testator (T)properly executes a will giving his farm, Blackacre, to his daughter (D), and the rest of his property to his son (S). T lives with D on Blackacre. Three years later T sells Blackacre and buys Whiteacre. T and D live together on Whiteacre until T's death four years later. From numerous utterances and acts it is very evident that T wants D to have Whiteacre for her own after his death. Will Whiteacre go to D or S? In most (maybe all) of the states, the answer would be, "S." The identity rule enunciated by Lord Thurlow in 1786 is followed.' As indicated by its application to T, D, and S, the dominating philosophy can bring forth some unsatisfactory results. Lord Thurlow's opinion calls for the application of a simple test in determining whether or not a specific devise adeems: If the asset identified as the exclusive subject of the devise is not held by the testator at his death, the devise fails.' Ademption by extinction, as this problem area is uniformly called, is reduced to a matter of identifying, if possible, the devised item in the estate.' The most often quoted statement by Lord Thurlow is: "And I do * Professor of Law, Willamette University. Visiting Professor of Law, Texas Tech University 1970-71. 1. Ashburner v. Macguire, 29 Eng. Rep. 62 (Ch. 1786). This hypothetical is similar to the facts in Ashburner in that the testator sells the devised asset (Blackacre). Three years later in Stanley v. -
Case and ~C®Mment
251 CASE AND ~C®MMENT. CROWN -SERVANT- INCORPORATION -IMMUNITY FROM BEING SUED. The recent case of Gilleghan v. Minister of Healthl decided by Farwell, J., is a decision on the questions : Will an action lie against a Minister-of the Crown in respect of an act admittedly done as a Minister of the Crown? Or -is the true view that the only remedy is against the Crown by petition of right? Does the mere incorporation. of a servant of the Crown confer the privilege of suing and the liability to be sued? The rationale for the general rule that a servant of the Crown cannot be sued in his official capacity is that the servant holds no assets in his official capacity which can be seized in satisfaction of a judgment. He holds only on behalf of the Crown.2 Collins, M.R., in Bainbridge v. Postmaster-General3 said : "The revenue of the country cannot be reached by an action against an official, unless there is some provision to be found in the legisla~ tion to enable this to be done." In the Gilleghan case the defendant moved to-strike out the statement of claim. The Minister of Health was established by the Ministry of Health Act- which provided, inter alia, that the Minister "may sue and be sued in the name of the Minister of Health" and that "for the purpose of acquiring and holding land" the Minister for the time being "shall be a corporation sole." Farwell, J ., decided that the provision that the Minister may sue and be sued does not give the plaintiff a cause of action for breach of contract against the Minister. -
California Bar Exam One-Sheets Electronic
CALIFORNIA ONE-SHEETS | One-Sheets for the California Bar Exam © 2020 Wills Key principle #1: intestate succession • Bar Exam Essay Tip: Intestate succession is applicable when the decedent dies without a will, or if the will is invalid in whole or in part, or does not make a total distribution. This frequently comes up with omitted child and omitted spouse problems. • Share for surviving spouse Community property: If the decedent is married, the spouse will receive one-half of community Note: Wills o questions property and one-half of quasi-community property acquired by the decedent. (The spouse had virtually already owned his or her one-half of the community property.) Thus, this means that the spouse always test will receive all of the community property and quasi-community property. California o Separate property (Feb 2018, Feb 2017, Feb 2007, Feb 2006, July 2004) law. § Spouse gets everything if the decedent did not leave issue, parent, brother, sister, or issue of a deceased brother or sister. § Spouse gets one-half of the separate property if the decedent Sampleis survived by one lineal descendant or by a parent or issue of a parent. § Spouse gets one-third of the decedent’s separate property if the decedent is survived by more than one lineal descendent. • Share for children o In California, if there is no surviving spouse, the entire estate passes to the decedent’s surviving issue. If the issue are of the same generation, they take equally (per capita). If they are not of the same generation, they take per capita with representation. -
The Decline of Revocation by Physical Act
Notre Dame Law School NDLScholarship Journal Articles Publications 2019 The Decline of Revocation by Physical Act Barry Cushman Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Estates and Trusts Commons, and the Insurance Law Commons Recommended Citation Barry Cushman, The Decline of Revocation by Physical Act, 54 Real Prop., Tr. & Est. L.J. 243 (2019). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1416 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE DECLINE OF REVOCATION BY PHYSICAL ACT Barry Cushman* Author's Synopsis: The power to revoke one's will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each state of the United States ofAmerica. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This Article surveys the place of revocation by physical act in the law governing will substitutes, such as payable-on-death designations on bank accounts, transfer-on-deathdesignations on brokerage accounts, life insurance and annuities, beneficiary deeds, and revocable trusts.