DOCSLIB.ORG

What's Wrong with Partial Intestacy? Richard F

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
What's Wrong with Partial Intestacy? Richard F CORE Metadata, citation and similar papers at core.ac.uk Provided by Marquette University Law School Marquette Law Review Volume 100 Article 8 Issue 4 Summer 2017 What's Wrong with Partial Intestacy? Richard F. Storrow School of Law, City University of New York Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Estates and Trusts Commons, and the Property Law and Real Estate Commons Repository Citation Richard F. Storrow, What's Wrong with Partial Intestacy?, 100 Marq. L. Rev. 1387 (2017). Available at: http://scholarship.law.marquette.edu/mulr/vol100/iss4/8 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 editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 39332-mqt_100-4 Sheet No. 137 Side A 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ WHAT’S WRONG WITH PARTIAL INTESTACY? Ǥȗ This article questions whether wills law’s disapproval of partial intestacy rests on defensible assumptions about testamentary intent. After examining the causes of and antidotes to partial intestacy, I make three primary points. First, the presumption against intestacy applies only to wills that contain an ambiguous bequest of the residue. Second, the law’s disapproval of partial intestacy is due in part to its failure to make an important distinction between testamentary intention and dispositive intention. Third, a theory of passive intention, heretofore barely alluded to in the law of wills, supplies the necessary validation of partially intestate estates. Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͺͺ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ ͵ ͻ Ͳ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻͳ ͳǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻͳ ʹǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻͶ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻ͹ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻͺ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳ͵ͻͺ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͲͷ Ǥ ǦǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͳͲ 39332-mqt_100-4 Sheet No. 137 Side A 07/17/2017 08:32:28 Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͳʹ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͳͶ ͳǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͳͶ ʹǤ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶͳͻ Ǥ ǣ ǤǤǤǤͳͶʹͳ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶʹʹ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶʹͶ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶʹ͹ Ǥ ǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤǤͳͶ͵ͳ ȗǡ ǡǡʹǡ ǡ ǡ Ǥ̷Ǥ Ǥ C M Y K 39332-mqt_100-4 Sheet No. 137 Side B 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ͳ͵ͺͺ MARQUETTE LAW REVIEW ȏͳͲͲǣͳ͵ͺ͹ Ǥ DzȏȐ ǯ ǯǤdzͳ Ǥ Ǥ ǡDzǮȏȐ ǡǡ Ǥǯdzʹ ǡ Ǥ͵ ǡǡ ǣ Hughes v. Allenȏ͵ͳ ǤͶͺ͵Ȑ Ǣ Ǥ ǯ Ȅ Dz dzDzdzȄ ǤͶ Dz ǡdzͷ 39332-mqt_100-4 Sheet No. 137 Side B 07/17/2017 08:32:28 ͳǤ ǤǤʹǦͳͲͳȋȌȋʹͲͳͲȌǡͺǤͳǤǤǤͻͺȋʹͲͳ͵ȌǢee also ǤǤ Ț͸ͶͲͲȋͳͻͻͲȌǢǤǤǤͳʹȚͷͲͳȋʹͲͳ͹ȌǢ ǤǤȚ͹͵ʹǤͳͲͳȋʹͲͳͷȌǢ͹ͷͷ ǤǤ ǤͷȀͶǦͳͶǢ ǤȚʹͻǦͳǦʹǦͶǢ Ț͸͵͵Ǥʹ͹ʹǢǤǤǡǤƬȚ͵ǦͳͲͳǢ ǤǤȚͻͳǦͳǦͳ͵ǢǤǤǤȚͶ͹ͶǤͲ͵ǢǤǤǤȚͳ͵ʹǤͳͻͷǢʹͲǤǤ ȚʹͳͲͳȋȌǢǤǤǤȚ͸ʹǦʹǦͳͲͳȋʹͲͲͻȌǤ ʹǤ ʹ Ǥ ǡ ʹ͵ͷȋ͵Ǥͳͺ͹͸Ȍǡ Ǥǡ ͳͺͻͺ͵ʹͳʹǡȗȗͷȋ ǤǤǤǤͳǡͳͺͻͺȌǤ ͵. See, e.g.ǡ ǯǡ ͸ʹ͹ ǤǤǤʹ ͷͶͶǡ ͷͶͷ ȋǤ Ǥ ͳͻͻͷȌǢ ǡͶͶͺǤʹʹͺǡ͵ͳȋ ǤǤǤǤͳͻͺͶȌǢee also ǡͶͻ Ǥʹ͵͵͹ǡ͵͵ͻȋ ǤͳͻͷͲȌȋ ǯ ȌǤ ͶǤ ǤǡThe Time Gap in Wills: Problems under Georgia’s Lapse Statutes, ͸ Ǥ ǤǤʹ͸ͺǡʹͻ͸ȋͳͻ͹ʹȌǤ ͷǤ Ǥ ǡ͵ʹ͹ǤǤ͵ͶͶͶǡͶͶͺȋǤʹͲͳͲȌǢǯ Ǥ ǡ ͸ͳ͸ ǤǤʹ ͹ͳͲǡ ͹ͳͷ ȋǤǤ ʹͲͲͷȌǢ ǡ ͵͹͹ ǤǤʹ ͹ͻͳǡ ͹ͻ͹ ȋ Ǥ ͳͻͺͷȌȋ ǡ Ǥǡ ȌǤ C M Y K 39332-mqt_100-4 Sheet No. 138 Side A 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ʹͲͳ͹Ȑ WHAT’S WRONG WITH PARTIAL INTESTACY? ͳ͵ͺͻ Ǥinterpret ǯ ǡ Ǥ ǡ Ǥ construe ǯ Ǥ presumed Ǥ͸ ǡ Ǥ͹ ǡ Ǥ Ǧ Ǥ ǡͺ ǯǤ ǡ ǡ presence Ǥ ǡͻDzdz ǤͳͲ ǡ ǡ ǯ 39332-mqt_100-4 Sheet No. 138 Side A 07/17/2017 08:32:28 Ǥ ͸Ǥ Ǥ ǡ ͷͻͻ ǤǤʹ ͺͶ͸ǡ ͺͷͳ ȋǤ Ǥ Ǥ ͳͻͻͻȌ ȋ Dz dzȌǤ ͹Ǥ Ǥ ǡ Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction, ͷ͸ǤǤǤǤǤ͸ͷǡͺͲȂͺͳȋʹͲͲͷȌǤ ͺǤ ǤǡStepfamilies in the Law of Intestate Succession and Wills, ʹʹǤǤ ǤǤͻͳ͹ǡͻͳͺȋͳͻͺͻȌǤ DzǤdz ǡ Intestate Intent: Presumed Will Theory, Duty Theory, and the Flaw of Relying on Average Decedent Intent, ͶͻǤǤƬǤ Ǥͷ͸ͷǡͷ͸͸ȋʹͲͳͷȌǤ ͻǤ ǤǯǡͳͺͶǤǤʹͻͳͳǡͻͳ͵ȋǤͳͻͶͷȌǤ ͳͲǤ ǡ ʹ͹ʹ Ǥ͵ ͸͸ͺǡ ͸͹ͷǡ ͸ͺͲǡ ͸ͺͳ ȋǤ ʹͲͳʹȌȋǯ ȌǤ C M Y K 39332-mqt_100-4 Sheet No. 138 Side B 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ͳ͵ͻͲ MARQUETTE LAW REVIEW ȏͳͲͲǣͳ͵ͺ͹ Ǥ ǡ ǡǤ Ǥ ǡ Ǥ ǡ Ǥ ǡ Ǥ ǡ ǡǤ ǡ ǡ Ǥ ǡ Ǥ ǯ Ǥ ǡ Ǥ Ǥ 39332-mqt_100-4 Sheet No. 138 Side B 07/17/2017 08:32:28 Ǥ ǡ Ǥǡ Ǥ Ǥ ǡ Ǥ Ǥ ǡ ǡǡ C M Y K 39332-mqt_100-4 Sheet No. 139 Side A 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ʹͲͳ͹Ȑ WHAT’S WRONG WITH PARTIAL INTESTACY? ͳ͵ͻͳ Ǥ Ǥͳͳ ǡͳʹ ǯͳ͵ ǤͳͶ Ǥͳͷ ǡǡDz̈́ͳͲͲǡͲͲͲ Ǥdzͳ͸ ǡ ǡ Ǥͳ͹ ǡ Ǥͳͺ ǯ ǡ Ǥ Ǥ A. Residuary Bequest Dzǯ ǡdzͳͻ Ǥ ǡ ǯǤǡ ǡ Ǥ ͳǤ 39332-mqt_100-4 Sheet No. 139 Side A 07/17/2017 08:32:28 ǡǡʹͲ ͳͳǤ ǯǡ͸Ǥʹʹ͹Ͷǡʹ͹Ͷȋ ǤͳͻͶʹȌǤ ͳʹ.Id. ͳ͵. See, e.g.ǡ Ǥ ǡͷͺʹǤǤʹͻͶͻǡͻͷͳǡǤ͵ȋǤͳͻͻͳȌǤ ͳͶ. See, e.g.ǡ ǡ͹ͶͶǤǤʹͷͷͷǡͷͷ͹ȋǤǤʹͲͲͺȌǤ ͳͷǤ ǡ͸͵͵ǤǤʹͷ͹ͳǡͷ͹ͶȋǤǤǤʹͲͲͳȌǤ ͳ͸Ǥ Ƭ Ǥ ǡ ǡǡ͵͹ͶȋͻǤʹͲͳ͵ȌǤ ͳ͹.Id. ͳͺ. See idǤ ͳͻǤ ǡ ͷͺ͹ ǤǤǤʹ ͹͸ǡ ͹͹ ȋǤ Ǥ ͳͻͻʹȌǤ See also Ǥ Ƭ ǤǡʹͲͳͶʹͻͺʹ͹Ͳǡȗ͵ȋǤǤǤ ǤʹͺǡʹͲͳͶȌȋDz ǤǤǤ ǤdzȌȋȌǤ ʹͲ. See, e.g.ǡ ǤǡͳͶͻǤʹͷ͸ǡͷͺȋǤͳͻͷͻȌǢ ǡ͹ͺǤ͵ͳͳͲ͸ǡ ͳͳͲ͹ȋǤǤǤʹͲͳ͵ȌǢǤǡǤǦͳ͵Ͳ͸͵ͷǡʹͲͳͶʹͻͷ͹ʹͶʹǡȗͳȋǤ C M Y K 39332-mqt_100-4 Sheet No. 139 Side B 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ͳ͵ͻʹ MARQUETTE LAW REVIEW ȏͳͲͲǣͳ͵ͺ͹ ǯǡʹͳǯ ǡʹʹǯ ǡǡ Ǥʹ͵ ǡͳͶͷ ǡ Ǧ ǤʹͶ Ǥǡ ǡDzȏȐ Ǥdzʹͷ Holcomb v. NewtonǤʹ͸ Ǥʹ͹ Ǥ ȋ ȌǡǤʹͺ ǣDz ǡ ǡ ǤdzʹͻǢ Ǥ ʹ͹ǡʹͲͳͶȌǢǤǡǤʹͶͳͻǦ ǡʹͲͳ͵ͷ͵ͻͻͳǡȗͳȋǤǤ Ǥ ʹǡʹͲͳ͵ȌǢǤǡ͵ͺ͵ǤǤʹ͵ͺ͵ǡ͵ͺͷȋǤͳͻ͸ͶȌȋ Ǣ ȌǢ ǡͳͺͳ ǤǤ͵͵ͶͶǡ͵ͷͷȋǤǤǤʹͲͲͷȌǤ ǡǤǡMyWill Be Done: Accommodating the Erring and the Atypical Testator, ͺͲǤǤǤ͵ͺ͹ǡͶʹͳǡǤͳͶ͹ 39332-mqt_100-4 Sheet No. 139 Side B 07/17/2017 08:32:28 ȋʹͲͲͳȌǤ ʹͳ. See, e.g.ǡ ǡͺʹ͹ǤǤʹ͸ǡͳ͸ȋ ǤǤʹͲͲͷȌǢ Ǥ ǡʹͲͳͶ͵ͳ͸ʹǡʹͲͳͶͻ͵ͳͷǤͺ͹ȋǤǤǤǤȌǤ ʹʹǤ ǤǡIrresolute Testators, Clear and Convincing Wills Law, ͹͵ ǤƬǤ Ǥ͵ǡ͸ͺȋʹͲͳ͸ȌǤ ʹ͵. See, e.g.ǡ Milamǡ ͳͺͳ ǤǤ͵ ͵ͷͷ ȋ ȌǤ ǤSee, e.g.ǡ ǡ ͵͵͸ ǤǤǤʹ ͹ͺͳǡ ͹ͺͻ ȋǤ Ǥ ͳͻ͹ʹȌ ȋ ǯǯȌǤ ʹͶǤ ǡIn Their Own Hand: An Analysis of Holographic Wills and Homemade Willmaking, Ͷ͵ǤǤƬǤǤ Ǥʹ͹ǡͶͻȋʹͲͲͺȌǤ ʹͷǤ ǤǡͷʹͺǤǤʹͳ͵͵ͳǡͳ͵͵ͷȋǤǤͳͻͺ͸ȌǤ ʹ͸Ǥ ʹʹ͸ǤǤʹ͸͹ͲȋǤǤǤͳͻͷͲȌǤ ʹ͹.Id.͸͹ͳǤ ʹͺ.Id.͸͹ʹǤ ʹͻ.Id. C M Y K 39332-mqt_100-4 Sheet No. 140 Side A 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ʹͲͳ͹Ȑ WHAT’S WRONG WITH PARTIAL INTESTACY? ͳ͵ͻ͵ Ǥ͵Ͳ Ǥ In re Estate of Oliverio Ǥ͵ͳ Ǧ Ǥ͵ʹ ǡ Ǥ͵͵ Ǧ ǯǡ DzǦ ȋͳȀ͵Ȍ dz Dz Ǥdz͵Ͷ ǯ ǡ Ǥ͵ͷ ǡ Ǥ In re Will of Shannon.͵͸ ǡ Ǧ Ǧ Ǥ͵͹ Ǧ Ǥ͵ͺǡǡ Ǥ Ǧ Ǥ Ǥ͵ͻ Bowman v. Brown, 39332-mqt_100-4 Sheet No. 140 Side A 07/17/2017 08:32:28 ͵Ͳ.Id.͸͹͵Ǥ ͵ͳǤ ǡͶͳͷǤǤǤʹ͵͵ͷǡ͵͵ͺȋǤǤͳͻ͹ͻȌǤ ͵ʹ.Id.͵͵ͻǤ ͵͵.Id. ͵Ͷ.Id. ͵ͶͲǤ ͵ͷ.IdǤ͵͵ͺǡ͵ͶͳǤ ͵͸Ǥ ͷͺ͹ǤǤǤʹ͹͸ȋǤǤͳͻͻʹȌǤ ͵͹.IdǤ͹͹Ǥ ͵ͺ.IdǤ ͵ͻ.Id. See alsoǤǡͳ͹͹ǤǤ͹ͷǡͺͶȂͺͷȋͳͻͲ͵ȌȋǦ ȌǤ C M Y K 39332-mqt_100-4 Sheet No. 140 Side B 07/17/2017 08:32:28 ͵ʹ͵͵Ǧͷ͹ ͷǦͶ͸ǦͻͶǦͲ͹ͷ͹ʹ͵ͻ͸ʹȋȌ ͹ȀͳͶȀʹͲͳ͹͸ǣͲͶ ͳ͵ͻͶ MARQUETTE LAW REVIEW ȏͳͲͲǣͳ͵ͺ͹ ǤͶͲ ǡ ǯ ǤͶͳ ǯ Ǥ ǡIn re White, ǤͶʹ ǤͶ͵ ǤͶͶ ǤͶͷ ǡ ǡ ǡ ǤͶ͸ ǡ Ǥ ǡǯǯ ǡ ǡǤͶ͹ ʹǤ Dz ǡ ǤdzͶͺ ǡ Ǥ ǡ ǡ ǡ ǡͶͻ ǡͷͲ 39332-mqt_100-4 Sheet No. 140 Side B 07/17/2017 08:32:28 ͶͲǤ ǤǡͳͶͻǤʹͷ͸ǡͷ͹ȋǤͳͻͷͻȌǤ Ͷͳ.Id. ͸ͲǤ ͶʹǤ ǡͷ͸͸Ǥʹ͹ʹͲǡ͹ʹͳȋǤǤͳͻ͹͹ȌǤ Ͷ͵.Id. ͶͶ.Id. Ͷͷ.Id. Ͷ͸. See, e.g.ǡ ǡͺͳǤǤͶ͵͸ǡͶ͵ͺȋǤǤǤͳͻ͸ͻȌǤ Ͷ͹. See, e.g.ǡ ǯǡͳͲʹǤʹͶͶ͵ǡͶͶ͹ȋǤǤǤͳͻͶͲȌǤ ͶͺǤ ǤƬǤǤǡͺ͹ǤͳͲͺͻǡͳͲͻ͵ȋǤͳͻͳ͵ȌǤ ͶͻǤ ǡ Ǥ ǡsee, e.g.
Load more

Recommended publications
  • 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
    [Show full text]
  • 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.
    [Show full text]
  • Uniform Probate Code Article Ii Intestacy, Wills, and Donative Transfers
    UNIFORM PROBATE CODE ARTICLE II INTESTACY, WILLS, AND DONATIVE TRANSFERS [Sections to be Revised in Bold] Table of Sections PART 1 INTESTATE SUCCESSION § 2-101. Intestate Estate. § 2-102. Share of Spouse. § 2-102A. Share of Spouse. § 2-103. Share of Heirs Other Than Surviving Spouse. § 2-104. Requirement That Heir Survive Decedent for 120 Hours. § 2-105. No Taker. § 2-106. Representation. § 2-107. Kindred of Half Blood. § 2-108. Afterborn Heirs. § 2-109. Advancements. § 2-110. Debts to Decedent. § 2-111. Alienage. § 2-112. Dower and Curtesy Abolished. § 2-113. Individuals Related to Decedent Through Two Lines. § 2-114. Parent and Child Relationship. § 2-101. Intestate Estate. (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share. § 2-102. Share of Spouse. The intestate share of a decedent’s surviving spouse is: (1) the entire intestate estate if: (i) no descendant or parent of the decedent survives the decedent; or (ii) all of the decedent’s surviving descendants are also
    [Show full text]
  • Caregiving and the Case for Testamentary Freedom
    Caregiving and the Case for Testamentary Freedom Joshua C. Tate* Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world’s legal systems currently do not. This Article contends that broad freedom of testation under state law is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden * Assistant Professor of Law, Southern Methodist University. I would like to thank Gregory Alexander, Mark Ascher, Stuart Banner, Joseph Biancalana, Ira Bloom, Ralph Brashier, Alexandra Braun, Meta Brown, Hamilton Bryson, Naomi Cahn, June Carbone, Regis Campfield, Ronald Chester, Barry Cushman, Alyssa DiRusso, John Eason, Robert Ellickson, Mary Louise Fellows, Mark Fenster, Thomas Gallanis, Susan Gary, Joshua Getzler, Edward Halbach, Hendrik Hartog, Jill Hasday, Lisa Hasday, Richard Helmholz, Adam Hirsch, Clare Huntington, Daniel Klerman, Nina Kohn, Andrew Kull, John Langbein, Henry Lischer, John Lowe, Maurizio Lupoi, Grayson McCouch, William McGovern, Mavis Maclean, Ray Madoff, Paula Monopoli, Melissa
    [Show full text]
  • 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.
    [Show full text]
  • Text and Time: a Theory of Testamentary Obsolescence
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Law Review Volume 86 Issue 3 2009 Text and Time: A Theory of Testamentary Obsolescence Adam J. Hirsch Florida State University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Estates and Trusts Commons Recommended Citation Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence, 86 WASH. U. L. REV. 609 (2009). Available at: https://openscholarship.wustl.edu/law_lawreview/vol86/iss3/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. TEXT AND TIME: A THEORY OF TESTAMENTARY OBSOLESCENCE ADAM J. HIRSCH∗ Events may occur after a will is executed that ordinarily give rise to changes of intent regarding the estate plan—yet the testator may take no action to revoke or amend the original will. Should such a will be given literal effect? When, if ever, should lawmakers intervene to update a will on the testator's behalf? This is the problem of testamentary obsolescence. It reflects a fundamental, structural problem in law that can also crop up with regard to constitutions, statutes, and other performative texts, any one of which may become timeworn. This Article develops a theoretical framework for determining when lawmakers should—and should not—step in to revise wills that testators have left unaltered and endeavors to locate this framework in the context of other forms of textual obsolescence.
    [Show full text]
  • The Intestate Claims of Heirs Excluded by Will: Should "Negative Wills" Be Enforced?
    The Intestate Claims of Heirs Excluded by Will: Should "Negative Wills" Be Enforced? When a testator's will fails to provide for the disposition of his entire estate, the portion of the estate that is not disposed of usu- ally passes to the testator's heirs under the intestacy laws.' These laws reflect a presumption about what the testator would have wanted had he considered the matter.2 In some cases, however, the testator may have expressed a contrary intent. For example, a will may expressly disinherit an heir and leave the estate to someone else; or it may leave a small sum "and no more" to an heir, while giving the bulk of the estate to someone else; or a "will" may con- tain no devise at all, but express a desire that an heir receive no part of the estate.3 If the will does not fully dispose of the testa- tor's property and some or all of his estate must pass by intestacy, an issue arises as to whether the intestacy statute requires the ex- cluded heir to receive an intestate share, contrary to the testator's intent. This comment discusses the circumstances in which a will that expressly disinherits an heir or limits the heir's gift to the devise in the will (a "negative will") may foreclose the award of an intestate share to that heir where some or all of the testator's estate passes by intestacy. Since the mid-nineteenth century, English courts have enforced negative wills where (1) the testator clearly intended to exclude an heir or to limit an heir's share in the estate to the devise in the will, and (2) at least one other heir remains eligible to take the property that passes by intestacy.4 Under this approach, the exclusion of the heir (or limitation of the heir's gift) in the will See, e.g., UNIF.
    [Show full text]
  • Conflicts of International Inheritance Laws in the Age of Multinational Lives Adam F
    \\jciprod01\productn\C\CIN\52-4\CIN403.txt unknown Seq: 1 17-JUL-20 14:56 Conflicts of International Inheritance Laws in the Age of Multinational Lives Adam F. Streisand† & Lena G. Streisand‡ Introduction ..................................................... 675 R I. Ancient Rome ............................................ 678 R II. Historical Development of the Civil Law Tradition ........ 683 R III. Historical Development in the Common Law Nations ..... 687 R IV. The Islamic Model ....................................... 695 R V. Inheritance Laws in Russia ............................... 698 R VI. Modern Rules of Forced Heirship in Civil Law ............ 701 R VII. Common Law Freedoms of Testation ..................... 706 R VIII. Who Claims This Decedent? .............................. 709 R Conclusion ...................................................... 715 R Introduction Today, more than ever, we have multinational lives. That is to say, we may have more than one home or spend significant amounts of time in more than one country. There can be nothing more sublime than to immerse oneself in a foreign culture, converse in a different language than one’s own native tongue, and open the mind to ways of thinking that may even be anathema to the values instilled in us from our very first years. One can only benefit. But what if you were someone like Douglas Raines Tompkins, founder of The North Face and Esprit apparel companies, and adventurist-turned- philanthropist? When Tompkins sold his companies, which he founded in San Francisco, California, where he lived most of his life, he committed to donating his entire wealth to land conservation and wildlife preservation.1 Tompkins acquired millions of acres of land in Chile and Argentina and made grand bargains with the governments of those nations: he offered to donate his land to the governments as long as they too contributed land, and agreed to dedicate the entirety of those lands for national parks and wildlife preserves.
    [Show full text]
  • Pouring Nonprobate Assets Into a Testamentary Trust: a Half-Protected Activity in Alaska
    Pouring Nonprobate Assets Into a Testamentary Trust: A Half-Protected Activity in Alaska This Note examines the use of a testamentary trust as the recepta- cle for transfers of nonprobate assets. First, this Note describes the two principal objections that courts have raised with respect to the designation of a testamentary trustee as the beneficiary of nonprobateassets. Then, this Note evaluates statutory attempts to address these two objections. Finally, this Note concludes that recently proposed House Bill 308 could easily be revised to provideAlaskans with comprehensiveprotection from the dangers posed by both objections. I. INTRODUCTION During the last half century, an enormous change has occurred in both the nature of wealth and the way in which it is held.' So- called "will substitutes" such as life insurance, pension and retirement accounts, joint accounts and even revocable trusts have become commonplace and increasingly significant in the asset portfolios of middle and upper-income Americans. Will substitutes permit the transfer of property at death through the use of beneficiary designations. More importantly, however, will substi- tutes transfer title in a way that completely avoids the probate system. Thus, as the use of will substitutes has proliferated, the traditional system of title-clearing through a probate court has suffered a corresponding marginalization. Part of the marginalization of the probate system can be traced to popular resentment of it. Norman Dacey's bestseller How to Avoid Probate,2 now in its fifth edition,3 reflects the widespread public scorn that crystallized around the middle of this century. The probate process has earned a reputation as an expensive, Copyright © 1995 by Alaska Law Review 1.
    [Show full text]
  • CHINA and the UNITED STATES: YIN and YANK INTESTACY Andrew Watson Brown
    Masthead Logo Santa Clara Law Review Volume 59 | Number 1 Article 7 4-7-2019 CHINA AND THE UNITED STATES: YIN AND YANK INTESTACY Andrew Watson Brown Follow this and additional works at: https://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Andrew Watson Brown, Case Note, CHINA AND THE UNITED STATES: YIN AND YANK INTESTACY, 59 Santa Clara L. Rev. 239 (2019). Available at: https://digitalcommons.law.scu.edu/lawreview/vol59/iss1/7 This Case Note is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized editor of Santa Clara Law Digital Commons. For more information, please contact [email protected], [email protected]. 7_BROWN FINAL.DOCX (DO NOT DELETE) 4/6/2019 5:19 PM CHINA AND THE UNITED STATES: YIN AND YANK INTESTACY Andrew Watson Brown* TABLE OF CONTENTS I. Introduction ..................................................................................... 240 II. Background .................................................................................... 241 III. Testamentary Freedom or Support? ............................................. 242 A. American Inheritance Model .............................................. 242 B. The Family Paradigm .......................................................... 243 1. Wrinkles in the Family Paradigm ................................. 245 a. Capacity .................................................................. 245 b. Anti-Lapse Statutes
    [Show full text]
  • Wills and Trusts (4Thed
    QUESTION 6 On January 5, 1990, Debra Duncan completed a printed form will. Frank Fellows and Gail Garven, two of Debra's co-workers, witnessed the will in Debra's presence and in the presence of each other. Neither read the will nor knew its contents. The completed will read: [Debra's handwritten additions are in bold] LAST WILL AND TESTAMENT I, Debra Duncan, a resident of Smalltown in the county of Orange of the State of Generality, being of sound and dsposing mind and memory, do make, publish and declare this my last WILL AND TESTAMENT, hereby revoking and making null and void any and all other Wills and Codicils heretofore made by me. FIRST, All my debts, funeral expenses, and any Estate or Inheritance taxes shall be paid out of my Estate, as soon after my death as shall be convenient. SECOND, I give, devise and bequeath, my 1989 Ford Escort to Frank Fellows and all my investments to Martha Murdo. THIRD, I nominate and appoint Sally Smith of Smalltown as the executor of this my Last Wlll and Testament. In Testimony Whereof, I have set my hand to this, My Last Will andTestarnent, on this 5th day of January, in the year 1990. IS/ Debra Duncan The foregoing instrument was signed by Debra Duncan in our presence who at her request and in her presence and in the presence of each other have subscribed our names as witnesses. Is/ Frank Fellows Dated this 5th day of January 1990. Is1 Gail Garven Dated this 5th day of January 1990.
    [Show full text]
  • STEVE R. AKERS Bessemer Trust Company, NA 300
    THE ANATOMY OF A WILL: PRACTICAL CONSIDERATIONS IN WILL DRAFTING* Authors: STEVE R. AKERS Bessemer Trust Company, N.A. 300 Crescent Court, Suite 800 Dallas, Texas 75201 BERNARD E. JONES Attorney at Law 3555 Timmons Lane, Suite 1020 Houston, Texas 77027 R. J. WATTS, II Law Office of R. J. Watts, II 9400 N. Central Expressway, Ste. 306 Dallas, Texas 75231-5039 State Bar of Texas ESTATE PLANNING AND PROBATE 101 COURSE June 25, 2012 San Antonio CHAPTER 2.1 * Copyright © 1993 - 2011 * by Steve R. Akers Anatomy of A Will Chapter 2.1 TABLE OF CONTENTS PART 1. NUTSHELL OF SUBSTANTIVE LAW REGARDING VALIDITY OF A WILL................................................................. 1 I. FUNDAMENTAL REQUIREMENTS OF A WILL. 1 A. What Is a "Will"?. 1 1. Generally. 1 2. Origin of the Term "Last Will and Testament".. 1 3. Summary of Basic Requirements. 1 B. Testamentary Intent. 1 1. Generally. 1 2. Instrument Clearly Labeled as a Will.. 2 3. Models or Instruction Letters. 2 4. Extraneous Evidence of Testamentary Intent.. 2 C. Testamentary Capacity - Who Can Make a Will. 2 1. Statutory Provision. 2 2. Judicial Development of the "Sound Mind" Requirement.. 2 a. Five Part Test--Current Rule.. 2 b. Old Four Part Test--No Longer the Law.. 2 c. Lucid Intervals. 3 d. Lay Opinion Testimony Admissible.. 3 e. Prior Adjudication of Insanity--Presumption of Continued Insanity. 3 f. Subsequent Adjudication of Insanity--Not Admissible. 3 g. Comparison of Testamentary Capacity with Contractual Capacity. 4 (1) Contractual Capacity in General.. 4 (2) Testamentary and Contractual Capacity Compared. 4 h. Insane Delusion.
    [Show full text]