Estates and Trusts Outline
1. TRANSFERING PROPERTY AT DEATH
a. Gratuitous Transfers
i. Donative (gifts)
1. Intervivos gifts (living)
2. Causa mortis gifts (deathbed)
b. Will = b/w dead and living – donor always dead
i. Reasons for No wills
1. No money or property to pass
2. There are rules in place to take care of the situation that I trust
a. Probate can be expensive though
3. Don’t like attorneys
4. Don’t want to think about death
ii. The more “non-traditional” your family is, the more you need a will
iii. Estate tax kicks in at $5.2mil ($10.4 married) (now $11?) – less than 1% of people
1. Wealth inequality much bigger issue than income inequality in US
2. Estate tax meant to shake some of that massive wealth up historically
3. Very little money actually raised through estate tax
4. Pros:
a. Less painful tax because taxed party is dead
b. Inherited wealth not good for country
5. Cons:
a. Deprives person who “earns” wealth from passing it on
c. Intestacy = no will
i. MO §474 – MO plan tailored to always married, traditional family with no half/step kids
ii. Law:
1. Restatement 2nd (MO)
2. Uniform Probate Code (UPC) (KS) – more modern
iii. Every state has spouse as first heir – different than common law
d. Rules: freedom of donative transfer almost unlimited
e. Organizing Principle: American law of donative transfers reflects freedom of disposition
f. 3 Types of Wealth Transfers:
i. Unsupervised wealth transfer
1. Most of what happens and growing
2. Ex: 2 names on a bank account/joint tenants, one dies, other takes full control
ii. Supervised wealth transfer:
1. Without or with will  both go through probate
2. Shrinking use
iii. Contested supervised wealth transfer
1. Results in litigation
2. Very small occurrences, high amounts of $$$
g. Heirs - MO §474
i. No one alive has heirs, must be dead
ii. Must be designated by the state if no valid will
iii. Heirs =/= beneficiaries (wills)
h. Shapira v. Union National Bank – 1974
i. Was the condition enforceable? Yes under Constitution and public policy
ii. Dr. has limited his kid’s rights to take property (2 sons 1 daughter)
iii. Daughter already married and lives in Israel
iv. Father worried his 2 sons would marry outside Jewish faith
v. In order to take property, sons must marry Jewish girl w/ 2 Jewish parents and conversion was not
allowed
vi. **No constitutional or state right to inherit property, only rights for donor**
1. Constitution applies to government not private people
vii. Look to see how likely the restraint can be fulfilled = test
i.
j.
k.
l.
m.
n.
o.
1. Partial restrictions on marriage allowed if it does not completely “close the door” on marriage
2. Ex: marry an 8ft girl or very few applicants (500 Jewish girls in area)
viii. “Dead-hand control” = the decedent can never change his mind
1. Ex: must marry Jewish girl even though a Catholic girl may have changed dad’s mind
ix. A court enforcing a private contract is NOT a state action
1. Exception: racial restrictive covenants in home ownership (Shelley v. Kramer)
x. Son does not have individual “rights” but the “public does” - policy
Succession: law of wills, trusts, intestacy, charitable foundations, death taxes
Freedom of disposition – moral right of a generation to the property of the prior generation
i. Allows owner to control disposition though
ii. Free to put any conditions on it
iii. Donor’s freedom of disposition, donee has an interest in a future inheritance that is a mere expectancy
iv. Courts cannot question the general fairness, reasonableness, of a donor’s decisions about how to
allocate his property
v. Exceptions: spousal rights, creditor rights, unreasonable restraints on alienation/marriage, promoting
separation/divorce, encouraging illegal activity, rules against perpetuities
Incentive Trust
i. Conditional gifts, like in Shapira
ii. Focus on ensuring that a beneficiary does not adopt a bad lifestyle usually
iii. Encourages pursuit of education
iv. Moral incentives that encourage a religious outlook or certain type of living
v. Encourages a productive career
vi. “Earn a dollar get a dollar” arraignment
1. Injuries or bad health can hurt that
Public policy
i. If a will/trust imposes an unreasonable restraint on marriage or encourages divorce or crime
Restatement 3rd of Trusts
i. What is contrary to public policy should be determined by balancing donor’s freedom of disposition
against social values and personal freedoms
ii. Cannot be unnecessarily punitive or intrusive into personal decisions or actions – may be invalid
3 Options for Orderly Succession:
i. Forced succession: property passed to spouse, children, etc. if not then to state
ii. Freedom of disposition: passed accordingly to dead’s wishes, if not preserved reliably, then default
rule of probable intent
iii. Confiscation by state: property rights terminate at death
Hodel v. Irving - 1987
i. 3 big cases in 1987 that helped create a constitutional right to transmit property (Nollan, First English,
Keystone Coal)
1. Very “pro private property”
ii. 3 part Penn Central Test used to determine if “taking” or not
1. Whether the decedent had “investment backed expectations” in the property
2. Average reciprocity of advantage
a. Does an individual bear the risk alone for public advantage
3. The character of the government action
a. What are the harms?
b. Why is the government doing this?
c. Does it just harm or completely destroy a property right?
d. Denominator problem:
i. Impact/loss from legislation / property right as a while
ii. This case: loss of ability to transfer small shares at death / entire stick and
bundle of property rights
iii. Congress passed a series of Land Acts that divided Indian reservations into individual allotments
iv. This involves a “takings case” of the decedent passing property, not the “right to pass property”
v. Question: whether the original version of the escheat provision of the Land Act effected a “taking” of
appellee’s decedent’s property w/o just compensation
vi. Land was held in a US Trust for the Indians
2.
3.
4.
5.
vii. Policy of allotment was a failure
viii. 3 appellees represented 4 decedents who owned 41 fractional interests subjected to §207
1. But for §207, this property would have passed to appellees or those they represent
2. §207 forbid the passing of small, undivided interests
ix. Held: Court found the regulation went too far
x. Result: minimally protected constitutional right to transfer property at death
1. State statutes though can remain silent protector
p. Blackstone: the power to transmit property at death is not a human/natural right
i. Locke: disagreed with this idea
ii. Blackstone’s view popular until 1980s
iii. His view reaffirmed that property is a construct of the “state” and thus is not from “nature” or God
iv. There is no constitutional right until after this case (1987)
1. Irving Trust (1942) stated that plainly, but there were lots of state statutes that protected this
right
q. Escheat: common law doctrine that transfers property to the state/Crown if there are no heirs, this case to the
tribe if <2% of total acreage of the land tract or earned less than $100 (§207)
r. Big issue of fractionalism: many owners of one parcel of land
i. Goal here was to combine many tiny tracts to make it more alienable
s. Posthumously Acquired Property Rights
i. What if the government increases property rights of the decedent?
ii. Shaw Family Archives v. CMG Worldwide
1. Marilyn Monroe died testate, her will not did expressly bequeath a right of publicity
2. Lee Strasberg received “the entire remaining balance”
3. He died in 1982 – wife Anna sole beneficiary and she eventually became Administrix of the
Monroe Estate
4. SFA owns photos of Monroe, copyrights apparently
5. Dispute arose out of tshirt sale of Monroe w/ SFA logo
6. Monroe LLC asserts it violated right of publicity statute that was passed 3 decades after
Monroe’s death
7. Held: an individual cannot pass by will a statutory property right that did not
exist/own/possess at time of death
8. Right of publicity comes too late, property is determined at time of death, neither before nor
after
Probate Property = property that passes through probate through will
a. You can go through probate with/without a will
b. With will: you appoint executor, they can serve without bond and do not need to be supervised by the court
c. Without will: must be supervised, administer to blood relatives
Non-Probate Property = avoids probate through will substitute
a. Intervivos Trust
i. Trustee holds it for beneficiaries that are named and distributes according to terms of the trust
ii. Avoids probate b/c property put into trust when decedent was alive
iii. Same as revocable trust (can change whenever you want)
b. Life insurance
c. Pay on Death and Transfer on Death contracts
i. Account custodian distributes property at decedent’s death to the named beneficiary – from banks,
brokerages, pensions, retirement accounts
ii. To collect, beneficiary just needs to file death certificate w/ custodian
d. Joint Tenancy
i. Decedent’s interest vanishes at death
ii. No interest transfers, surviving owner gains all ownership
3 functions of Probate:
a. Provides evidence of transfer of title to new owners, making it marketable
b. Protects creditors by providing a procedure for payment of decedent’s debts
c. Distributes property to those intended after creditors are paid
First probated in jurisdiction where decedent was domiciled at death
a. Primary of domiciliary jurisdiction
6.
7.
8.
9.
b. If probate estate includes real property in other jurisdictions, ancillary probate in that jurisdiction is required
in every jurisdiction
Definitions:
a. Decedent = dead person
b. Descendant = heir of body/issue
c. Devise = to pass by will; a devise = provision in will, real property
d. Descent/distribution = intestate (w/o will) words
e. Testate = die w/ valid will
f. Trusts
Trusts:
a. Separates legal title from beneficial/equitable title
b. Trustee = the one who holds legal title to the property/money
i. Beneficiary = one who holds equitable title (receives contents of trust)
c. Property goes into “bucket” called “trust res” which is then invested and used to pay the beneficiary (anything
can go in)
d. Trustee then invests the contents of the “bucket”
e. Intervivos trust:
i. You name yourself the settlor, trustee, and beneficiary
ii. Property put into this trust during the decedent’s life passes in accordance w/ the terms of the trust
and avoids probate court
iii. Creates a separate legal entity than the living person
iv. Biggest mistake = not transferring legal title of property from “John Doe” to “John Doe’s Trust” so
the person dies w/o the trust owning everything
1. Retitling of assets
v. Assets are taxable, revocable = still in control, did not relinquish that
1. In order to avoid the federal estate tax, you must relinquish control (testamentary trust)
vi. Avoids probate because the trust doesn’t die when John Doe dies
1. Property passes under the trust like a contract
Probate Transfers:
a. 30% of transfers
b. MO §473 done almost always by non-lawyers
c. Small estate exemption (MO): only probate if >$40,000
d. Venue = decedent’s domicile at time of death
i. Also in every jurisdiction with real property (ancillary)
ii. Some jurisdictions require licensed lawyers in each state involved
iii. So its very important to avoid probate (3 states, 3 lawyers, 3 judges)
Duties to Intended Beneficiaries:
a. Simpson v. Calivas
b. Robert Sr. died, had Robert Jr. with first wife, then married Roberta
c. Left “homestead” to Roberta and “all other real estate” to Robert Jr.
d. Homestead was not defined
e. Notes during creation of the will from lawyer were not admitted by probate court
i. Not in “4 corners” of document (extrinsic evidence)
f. Issue: whether an attorney who drafts a testator’s will owes him a duty of reasonable care to intended
beneficiaries? YES
g. Probate court looked to 4 corners and reversed for stepmother
h. Extrinsic evidence may be admitted to the extent that it does not contradict the express terms of the will when
it is ambiguous
i. Direct declarations of intent are usually inadmissible
i. Son now sues attorney who drafted dad’s will for malpractice on a third-party beneficiary theory and
negligence claim
j. Old rule = only duty to client, scope is limited to those in privity of contract
k. Exception: duty also runs from an attorney to intended beneficiary of a will
i. Emphasis on foreseeability of injury to intended beneficiary
l. Held: where a client has contracted with an attorney to draft a will and the client has identified to whom he
wishes his estate to pass, the intended beneficiary may enforce the terms of the K as a 3rd party beneficiary
m. Testator and lawyer had privity of K, lawyer and intended beneficiary had no legal relationship
10. Donahue v. Shugart – MO 1995
a. Intended recipients of gifts causa mortis brought legal malpractice action against donor’s attorney and his firm
b. Main problem was with delivery of deed in a transfer or property
i. Deed had to be delivered before death of donor or it is still in dominion and control  probate
process
c.
d.
MO limits cause of action to those who can actually prove they were intended beneficiary
Being named in the will is clearly enough proof of intended beneficiary
e. MO Factors: to determine where a defendant can be held liable with no privity
i. Extent to which the transaction was intended to affect the plaintiff
ii. The foreseeability of harm to plaintiff
iii. The degree of certainty that the P suffered injury
iv. The closeness of the connection b/w D’s conduct and injury suffered
v. The moral blame attached to D’s conduct
vi. The policy of preventing future harm
11. Conflicts of Interest
a. A v. B
i. Issue: whether a law firm may disclose confidential info of one co-client to another co-client
ii. Husband and wife estate planning
1. Waive duty of loyalty and confidentiality
2. Mirror image wills
3. Clerk of law firm misspells husband’s name when adding them to the system that checks for
conflicts of interest
iii. Husband’s mistress shows up to same law firm to seek representation for paternity claim against H
1. A search for conflict with H’s name spelled correctly reveals no results
2. Family law + estate planning in different areas so no crossover of lawyers
3. M’s lawyer writes to H, H gets different lawyer, DNA proves he is the father, negotiations
over child support failed
iv. Wife’s will included legit and illegitimate kids so the kid between H and M may inherit W’s property
v. The conflict of interest was discovered and firm withdrew from representing M
vi. Law firm feels the need to tell W about H/M kid
vii. Held: allowed to do so
INTESTACY
1. Default estate plan
2. Primary objective: carry out the probable intent of the typical decedent
3. Estate planning, state ordered, with no valid will
4. Laws that apply: domicile of decedent at death
a. Exception: real property in different states
5. Other name = law of descent and distribution
6. 2 sources of law:
a. UPC: not as widely adopted (13 states), viewed as a model, more progressive
b. State statutes/codes (MO): viewed as outdated, hasn’t changed much since original in 1955 or revision in
1980
i. Heir has to survive the decedent in order to be an heir (person who takes share of intestate estate)
7. Basic Structure:
a. 2 areas of widespread agreement:
i. In all states, after the spouse’s share, descendants take to the exclusion of ancestors and collaterals
ii. In nearly all states, intestacy favors only spouses and blood relations, with the latter category today
encompassing adopted persona and persons born of assisted reproductive technology
b. 2 areas of divergence:
i. Much variation in the size of the surviving spouse’s share, ranging from ¼ to the entirety, and
whether the surviving spouse must share w/ the decedent’s parents or descendants
ii. Competing methods for implementing the principle of representation by which the descendants of a
predeceased child take the child’s share
8. Table of Consanguinity – PG. 86
a.
b.
c.
d.
e.
f.
9.
10.
11.
12.
13.
14.
Consanguinity: blood = no spouse on the chart
Deceased  children  grandchildren  g-grandchildren, etc. = lineal descendants (down the chart)
Deceased  parents  g-parents  gg-parents, etc. = lineal ancestors (UP)
Collaterals = non-lineal
Parentellas = vertical lines on chart (5 on pg. 86, infinity in real life)
MO cuts off heirs at 9th degree of consanguinity
i. Ex: related to cousins in 4th degree = can take
g. UPC cuts off b/w 3rd and 4th parentellas
i. UPC intestacy rules pg. 69
h. No heir, can be an heir, unless they survive = must survive to take
UPC §2-102: Share of Spouse
a. Getting to intestacy = anything not covered by will / “what’s left” - §2-101(a)
b. §2-101(b) = decedent can limit/exclude/define what they want (not child anymore – enlarge = also a child)
c. Spouse = first heir
i. Can get entire estate if:
1. No descendant or parent of decedent OR
2. All of decedent’s surviving children are descendants of the spouse as well AND no
descendant of the spouse who survives the decedent
ii. Gives different lump sums depending on who survives and whose kids are left
1. $300k + ¾ if no descendant and a parent alive
2. §2-102(3): $225k + ½
a. H+W have kids, H dies, W has other kid alive at the time (step)
b. MO does not do this (§474.010) first $20k + ½
3. §2-102(4): $150k + ½
a. H+W have C1 and C2, H dies, H has C3 at the time (step)
b. If all the $ goes to W, kids can get it later, but this is C3’s only chance to take when
H dies
iii. *Step-children are not children*
1. Not heirs under this section, never take
iv. Length of marriage does not matter
§2-103: Share of Heirs other than Surviving Spouse
a. (a) = Order, have to survive to take
i. Potential heirs may qualify but get no $ b/c of higher, earlier heirs
ii. (1) Descendants
iii. (2) Parents (equally if both survive) – must be no descendants
iv. (3) Descendants of parents (brothers/sisters then nephews/nieces)
v. (4) G-Parents or descendants of g-parents (divided b/w paternal and maternal)
vi. (5) If not both paternal and maternal alive, one gets all
vii. (6) If none of the above = step relatives/kids (only time a stepchild can be an heir)
viii. If none 1-6 = escheats to the state (§2-105)
b. MO §474.010(2)
§2-203(b): Forced Share of Surviving Spouse
a. Elective share, mandatory share which a spouse is entitled to irrespective of decedent’s will = 50%
b. Sliding scale depending on years of marriage
c. Made a will, left spouse less than required, state “won’t tolerate”
i. Minimally provided for get divorced if you want to avoid (or prenup)
d. In MO: forced amount does not matter on time married, have to leave certain amount
All states now recognize same-sex intestacy rights
No “common law marriage” from living together = “spouse”
Simultaneous Death
a. A person succeeds to the property of a decedent only if the person survives the decedent for an instance of
time
b. Original Uniform Simultaneous Death Act provided that if there was “no sufficient evidence” of the order of
deaths, each was deemed to have predeceased the other
i. So neither inherited from each other – was revised in 1991
c. Janus v. Tarasewicz
i. Stanley and Theresa returned from honeymoon for Stanley’s brother’s death from cyanide tainted
pills
ii. S + T unknowingly took the same pills
iii. Though disputed, death certificates list Theresa as surviving 2 more days after Stanley died
iv. Life insurance policy paid out to T’s estate
v. Second beneficiary (S’s family) brought suit
vi. Sufficient evidence (preponderance of the evidence) law applied to determine whether she was alive
long
vii. UPC uses §2-104 instead = any claimant must survive by 120 hours (5 days) by clear and convincing
evidence
viii. MO §474.455 = devisee who does not survive testator by 120 hours treated as predeceasing testator
(exceptions)
ix. MO §474.015 = failure to survive decedent by 120 hours deemed predeceased (consequences) –
burden on heir
x. No much use for Simultaneous Death Act
xi. MO §461.041 = survival required for non-probate transfer (120 hrs)
15. Shares of Descendants
a. After surviving spouse  descendants
b. 2 step process:
i. Divide Shares
ii. Distribute
c. Old (pre-1996) MO statute: descendants and parents treated equal
i. No longer the case = parents now behind descendants
d. Prefer descend (kids) than ascend (parents) b/c younger people die later in the normal order of things
e. Ex: [P1] has C1, C2, C3 – split equally, no need for representation
i. [P1] has C1, C2, [C3] has GC1: GC gets to rise up to dead C3’s spot and represents C3
ii. Only need representation when someone at the level of distribution is predeceased by a descendant
f. Ex: [A] has B, C, D
i. B has E, [C] has F/G, D has H/I
ii. B gets 1/3, F/G split [C]’s 1/3 so 1/6 each, D gets 1/3
1. E, H/I get nothing because parents still alive
3 SYSTEMS/SCHEMES OF REPRESENTATION
1. English Per Stirpes (strict per stirpes)
a. Make number of shares at first line of descendants regardless of alive or dead then distribute accordingly
b. Creates vertical equality, each line (stock/root) of descendant treated equally
c. Property is divided into as many shares as there are living children of the designated persona and deceased
children who have descendants living
d. The children of each deceased descendant represent their deceased parent and are moved into their parent’s
position beginning at the first generation below the designated person
e. Ex: [A] has [B], [C], D
i. [B] has E, [C] has F/G, D has no kids
ii. 3 shares: E gets 1/3, F/G get 1/6 each, D gets 1/3
f. Ex 2: [P] has [C1, C2, C3, C4] – all dead
i. [C1] has 3 kids, [C2] has 2 kids, [C3/C4] each have 1 kid
ii. Since there are 4 original shares: C1’s kids get 1/12, C2’s kids get 1/8, C3/C4’s kids each get ¼
2. Modern Per Stirpes: MO §474.020
a. MO uses this, per capital with representation
b. Each line of descent treated equally beginning at first generation w/ a living taker
c. Example above with [P] having [C1-4]
i. 4 shares still, but divided equally, so all 7 grandkids get 1/7 each
d. If any children survive decedent = same as English Per Stirpes
3. 1990 UPC Scheme
a. Horizontal equity = each taker at each generation treated equally (equally near equally dear)
b. First cut of shares at generation closest to decedent with living person
i. Divide among descendants at that share, then pool shares of dead who left descendants
c. §2-106(b) = initial division of shares is made at the closest generation in which 1 or more descendants are
alive, but the shares of deceased persons on that level are treated as “one pot” and are dropped down and
divided equally among the next generation
d. Ex: [A] has [B], [C], D
i. [B] has E, [C] has F/G, D alive and no kids
ii. 3 shares: D gets his 1/3, remaining 2/3 split between 3 grandkids (2/9 each)
e. Ex: [P] has C1, C2, [C3], [C4]
i. [C3] has 2 kids, [C4] is dead and has no kids
ii. 3 shares: C1 and C2 get 1/3 each, C3’s kids get 1/6 each
iii. C4 getting NOTHING b/c dead and no kids (3 shares instead of original 4)
Shares of Ancestors and Collaterals
1. If an intestate decedent is survived by a descendant, ancestors and collaterals DO NOT TAKE
2. In half of the states, if no descendants, the spouse gets their share and the rest go to the parents of decedent
3. Ancestors: direct line, lineal relatives (parents, grandparents, great grandparents)
4. Ancestors ---> descendants
5. Collateral descendants: relative descending from a brother/sister of an ancestor (niece, nephew, cousin)
6. If other half of the states, the spouse takes to the exclusion of decedent’s parents
7. Collateral kindred: all persons who are related by blood to the decedent but are NOT descendants or ancestors
8. First-line collateral: descendants of the decedent’s parents, other than the decedent and decedent’s descendants
9. Second-line collaterals: descendants of the decedent’s grandparents, other than the decedent’s parents and their
descendants
10. Ex: Parents have [A – decedent], B, [C], [D], [E] - siblings
a. A has no kids, neither does B who is alive
b. [C] has F, [D] has G/[H]/[I], [E] has J,[K]
i. [H] has L/M/N, [I] has O, [K] has P
c. EPS: 4 shares: B gets ¼, F takes for dead parent [C] and gets ¼ = 2 shares left
i. G,[H],[I] get 1/12 each
1. Since H is dead and has 3 kids = L/M/N = 1/36 each
2. I is dead and has 1 kid = O = 1/12
ii. J/[K]split [E]’s share = 1/8 each
1. K has one kid P = 1/8
d. MPS: same as EPS here
e. UPC: B gets ¼, remaining ¾ split between next generation
i. F, G, H, I, J, K = 6 shares (alive with no ancestor that took)
ii. 3/4 divided by 6 = 1/8 share each for F, G, J (3/8 shares + 2/8 to B originally = 3/8 shares left)
iii. L, M, N, O, P split 3/8 divided by 5 = 3/40 each
11. Parentelic System:
a. Intestate estate passes to grandparents and their descendants, and if none, to great-grandparents and their
descendants, and if none, to great-great grandparents and their descendants, and so on down each line
12. Degree of Relationship System:
a. Intestate estate passes to the closest of kind, counting degrees of kinship (pg. 86)
b. To find each degree, count the steps (one for each generation) up from the decedent to the nearest common
ancestor
c. First cousin once removed = first cousin of decedent’s mother
d. First cousin twice removed = granddaughter of decedent’s first cousin
13. Half-Bloods
a. Related by 1 parent
b. Also known as half-siblings
c. In England, the common law courts excluded half-siblings
i. Rule has long been abolished in American states
d. Large majority of states – UPC §2-107: (all equal)
i. A relative of a half-blood is treated as the same as a relative of a whole-blood
e. In a few states, half-bloods given half-share (Scottish Rule)
f. MO §474.040 = ½ bloods get ½ share
g. Ex: Prince had 1 full-blood sister and 5 half-blood siblings
i. Double the number of collaterals of full-blood and add to number of half-bloods
ii. 1 FB * 2 = 2 + 5 HBs = 7
iii. FB sister gets 2/7 and HBs get 1/7 each
h. Ex 2: 1 HB and 1 FB
i. 2*1 = 2 + 1HB = 3
ii. FB gets 2/3 share and HB gets 1/3
14. Disinheritance by Negative Will
a. Old rule of law = not allowed (had to completely devise will elsewhere to exclude)
b. UPC §2-101(b) = changes this and authorizes a negative will by way of express disinheritance provision
i. The barred heir treated as if he predeceased the decedent
Transfers to Children (pg. 91-109)
1. Adopted Children
a. At early common law, had to be lawfully descended from a lawful marriage/spouse
b. Hall v. Vallandinham – 1988
i. Children of decedent, who were adopted by another, tried to sue after deceased’s brother died
(parental uncle)
ii. Rule: when you are adopted, you are cut off from your natural, biological family and “placed” into
the new family system
1. Transplantation theory
iii. Cannot double-dip
iv. At the time the kids were adopted, the law had not been changed and it would have allowed them to
inherit from natural parents
c. MO §474.060 – kids would not take (kids no longer heirs)
d. UPC 1990 Amendment: (kids would take)
i. Adoption of child by spouse or either natural parent has no effect on:
1. Relationship between the child and that natural parent OR
2. The right of the child or a descendant of that child to inherit from or through the other natural
parent
e. 2008 Amendment to UPC
i. Key determination is the “parent-child relationship”
ii. Where do we find it? Pg. 95
iii. Establishes parent-child relationship with non-adoptive genetic parent BUT only for purpose of
inheriting from OR through the other genetic parent
iv. New statute gets us to same result as §2-114(b) but through a different manner
v. If a parent-child relationship exists, “the parent is a parent of the child and the child is a child of a
parent for the purpose of intestate succession”
vi. UPC §2-119(b-d) = exceptions in the UPC
2. Adult Adoption
a. MO says nothing in the statutes (Davis v. Nielson)
b. Most intestacy statutes draw no distinction between the adoption of a minor and adult
c. In some states, the adoption of a lover is not allowed (NY)
i. Incompatible with parent-child relationship
ii. DE courts disagree and allow it
d. Minary v. Citizen’s Fidelity Bank
i. Question: did Alfred’s adoption of his wife Myra make her eligible to inherit under the provisions of
his mother Amelia’s will?
ii. Was Myra (wife, now child of Alfred) included in his mother’s estate under “my surviving heirs
according to the laws of descent and distribution in KY”
iii. Court sees the adoption as a sham
iv. An act of subterfuge, which in effect thwarts the intent of the ancestor whose property is being
distributed and cheats rightful heirs
v. Intent of son Alfred cannot defeat intent of testator Amelia
vi. Adoption was allowed but Myra not considered heir of Amelia
3. Adoption and Wills and Trusts
a. An adopted child is entitled to take under the will or trust of the adopted parent just like a biological child
4.
5.
6.
7.
b. The probable intent of the donor, A, is evidenced by the fact of the adoption
c. Stranger-to-adoption rule: the adoptive child is presumptively barred, whatever generic word is used, if the
donor was not the adoptive parent
i. Rule used that could be overcome by evidence that the donor did not intend to include persons
adopted by others
Equitable Adoption
a. MO recognizes equitable adoption in intestacy
i. Focuses on whether adopting parents led child to believe they’re a legally adopted member of their
family
b. Virtual adoption or adoption by estoppel
c. Parent-child relationship being established without a formal adoption
d. O’Neal v. Wilkes
i. Biological father and Bessie had Hattie out of wedlock, raised by Bessie until she died and never with
father. Hattie lived with Estelle for a while, then Father’s sister Estelle had Hattie adopted by the
Cooks who raised her but never adopted formally. Ms. Cook dies intestate, administer refused to
recognize Hattie as child
ii. Court found no valid contract to adopt
iii. Jury found Hattie had been virtually adopted by the Cooks
iv. But the paternal aunt who allegedly entered into the adoption contract had no right to do so – not a
parent
Non-Marital Children
a. Common law = out of wedlock, took from no one (filius nullius = child of no one
b. All states today permit inheritance by non-marital child from the child’s mother
c. Most states permit paternity to be established by evidence of the subsequent marriage of the parents,
acknowledgement of the father, and adjudication during the life of the father, or clear and convincing proof
after his death
d. MO § 474.060(2)
i. Born out of wedlock = child of mother
ii. Only child of father if:
1. Natural biological parents participated in a marriage ceremony before/after birth even if now
void OR
2. Paternity established by:
a. Adjudication before death of father
b. Established after death by clear and convincing proof
i. Only benefits child, not father and kindred
ii. More common in intestacy
e. Can use DNA testing to establish paternity (satisfies clear and convincing standard)
Non-Marital Children in Trusts
a. UPC: yes ONLY IF the decedent functioned as a parent
i. Otherwise you have to specifically define “kids” to include non-marital
Posthumously Conceived Children
a. After death
b. In MO, posthumous kids take but posthumously conceived kids do not
c. 2 kinds:
i. Father dies between conception and birth (easy)
ii. Conceived after death of parent
d. Hecht v. Superior Court
i. In a will, decedent left 15 vials of sperm to girlfriend
ii. Other alive children contested it, but gf won and received them
e. Woodward v. Commission of Social Security
i. Mr. found out he had cancer, so gave sperm to a sperm bank
ii. Died, Mrs. Had twins a few years later
iii. Mrs. Filed for mother’s benefits and child’s benefits from SS
iv. Must prove genetic and affirmative consent – still may be limited
v. 3 requirements in statute in California
1. Decedent consent in writing within 4 months of death
2. Notice of the possibility of posthumous conception is served upon person who has power to
control distribution of decedent’s property
3. Child was in utero within two years of decedent’s death and the child is not a clone
f. In re Martin B
i. Martin (dad) died having 2 kids: James and Lindsey
1. James died before Martin, but left sperm for his wife
2. James’ wife ended up having 2 posthumous kids
ii. Are those 2 kids included as “issue” and “descendants”? – YES
iii. Test:
1. Demonstrable genetic relationship between child and decedent
2. Decedent affirmatively consented to posthumous conception and to the support of any
resulting child – freezing sperm not affirmative consent
iv. Made the decision without any knowledge of intent
1. If Martin had said “no posthumous kids” then NO
v. MO § 474.050 (closest) = posthumously conceived kids cannot take currently
1. No statute technically
2. Needs to be alive at the time of decedent’s death
3. Vogel case – 1974
4. If born within 280 days after husband’s death, presumption of conception during lifetime of
husband
a. If no marriage, look to §474.060(2) and have to establish paternity by
clear/convincing evidence
g. 2008 UPC Amendment: similar rule for posthumous conception and class gifts as its rule for intestate
succession
i. Difference is the focus for class gifts is on the distribution date rather than the date of parent’s death
8. Advancements and Hotchpot
a. MO § 474.090 = advancement ONLY IF – need evidence
b. If a child wishes to share in the intestate distribution of a deceased parent’s estate, the child must permit the
administrator to include in the determination of the distributive shares the value of any property that the
decedent, while living, gave to the child through advancement
c. Basically a prepaid payment of inheritance
d. Common law = any lifetime gift was presumed to be an advancement or prepayment of the child’s share
(presumption all kids deserve same amount)
e. Hotchpot
i. If a gift is treated as an advancement, it is accepted for in distributing the decedent’s estate by
bringing it into hotchpot
ii. Ex: if O leaves no spouse and kids A, B, C, estate = $50,000
1. A received $10k advancement
2. $10k advancement + $50k estate = $60,000 hotchpot
3. 3 shares = $20,000 each for B, C
4. A gets $20,000 - $10,000 advance = $10,000
f. Common law presumption has mostly changed
i. NOW = NO presumption it was an advancement
ii. Current presumption is that it was a lifetime gift in most jurisdictions
Bars to Succession
1. Rule that prohibits a slayer form inheriting from his victim
2. Voluntary disclaimer (every state allows you to disclaim inheritance)
a. Cannot shed federal government as a creditor though
3. Slayer Rule:
a. In re Estate of Mahoney
i. Wife killed husband and was convicted
ii. Question: whether a widow convicted of manslaughter in connection with the death of her husband
may inherit from his estate
iii. MO does not have slayer statute
iv. Jurisdictions with no statutory slayer provisions:
1. The legal title passed to the slayer and may be retained by him in spite of the crime
a. Imposing the restrictions is additional punishment
2. The legal title will not pass to the slayer b/c of equitable principle that no one should be
permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong
or crime
3. The legal title passes to the slayer but equity holds him to be a constructive trustee for the
heirs or next of kin to the decedent
v. Looked at difference between voluntary and involuntary manslaughter
1. Intent to kill
vi. Prevailing view: the killer predeceases the decedent
4. Disclaimer Rule – MO §469.010
a. Declining to take property you have inherited
b. Reduce taxes or keep property from creditors
c. If you disclaim = treated as predeceasing the decedent
d. Cannot be used to increase your (or your descendants) number of shares
WILLS:
1. Worst evidence = witness who is best able to authenticate the will or verify it was voluntarily made or clarify intent is
dead (decedent)
2. The Wills Act of every state requires compliance with particular formalities for making or revoking a will
3. Execution:
a. 3 Core Formalities:
i. Writing
ii. Signature
iii. Attestation (witnesses – usually 2)
b. Never make a will for 2 people – each gets their own
c. Only valid if the will is the original = copies don’t count
d. Executor = personal representative
e. Last page of will (pg. 187) is an affidavit to help prove it
i. Acts as witness testimony
f. Purpose of Formalities: the will is:
i. Authentic
1. Is it really T’s will/intent?
ii. Voluntary
1. Capacity to make a will (moment of lucidity) / pressure/circumstances
iii. Final wishes of the decedent/do we understand what you wanted
iv. Secondary Functions:
1. Impress of the solemnity of making a will (ritual)
2. Protect testator from imposition
3. Standardize the forms of wills
g. Ritual function: significance of final intent = not just a plan
h. Evidentiary function: supply satisfactory evidence to the court
i. Protective function: prophylactic purpose of safeguarding the testator
j. Channeling function: standard form “looks like a will”
k. Comparison of statutory formalities pg. 149
l. Must be signed, hard copy: NO flash drives or video wills
m. Subscription = requirement that T sign at the bottom of the page
n. Requirements:
i. Statute of Frauds: writing, signature, attestation/subscription by 3 Ws
ii. Wills Act (1837): writing, subscription, attestation/subscription of 2 Ws
iii. UPC (1990): writing, signature, attestation/signature by 2 Ws
iv. UPC (2008): writing, signature, attestation/signature by 2 Ws OR notarized
v. MO §474.320 = same 3 requirements:
1. Writing, signature (exception if T cannot write), attestation/signature by 2 Ws or notarized
2. Must be signed within reasonable time
o. Attested Wills:
i. Attestation: Bearing witness that the document of testator was properly executed and T was of sound
mind and body
1. Witnesses sign instrument to vouch for that
ii. T always signs first – always in presence of witnesses
1. UPC T can sign before and acknowledge it to witnesses later
iii. In strict states (Groffman, Casdorph)
1. W must sign in presence of T, W must sign in presence of other Ws
iv. In MO: W must sign in presence of T, W need not sign in presence of Ws
v. In UPC: presence of T not required for W sign, nor presence of Ws
vi. In re Groffman
1. Strict Compliance Rule
2. Will was already signed by T, witnesses were in other rooms
3. Not valid, no acknowledgement/signature by T in the presence of 2 or more Ws
vii. Presence Requirement:
1. Strict - Casdorph:
a. Executed will at bank, but Ws did not see it
b. Ct found witnesses did not sign in the presence of T or each other, and that T did not
sign in the presence of witnesses
c. Not valid
2. Line of Sight:
a. Presence only if T is capable of seeing the witnesses in the act of signing
b. DOES NOT have to actually see them, but be able to see them if he looked
3. Conscious Presence
a. Witnesses is in the presence of T, if:
i. T, through sight, hearing, general consciousness of events, comprehends that
the witness is in the act of signing
ii. Mental apprehension test – just be aware
4. UPC §2-502(a) dispenses all together with the requirement that witnesses sign in T’s
presence
a. For a signature by another at the T’s discretion, UPC requires conscious presence
5. **KS and MO use line of sight test**
a. MO §474.320
viii. Weber = bank teller watches President sign as W, then teller signs as W, and waives to T in the car
1. Court ruled not valid, T could see the teller but not the pen and will
ix. Signature Requirement:
1. Purpose: distinguish b/w draft and original
2. UPC §2-502(a) = all states require T to sign
3. Mark, cross, abbreviation, nickname can be sufficient
4. McCabe: very ill, signed with “X” b/c hands too shaky = valid
5. Young: letter “J: sufficient b/c writer was partially paralyzed
6. Assistance in writing can be valid if T intended to adopt as his will
a. Same if someone else signed for McCabe if at his discretion and in his presence
7. Taylor v. Holt
a. A week before death, composed will on his computer
b. Presence of 2 Ws, typed signature in cursive font and printed it
c. 2 Ws signed by hand and got document notarized
d. Court held the will was valid
8. Biggest question: did T intend the mark, nickname, etc. to be his signature?
9. Order: T must sign/acknowledge before Ws attest
10. Letterhead at top of page probably not signature
11. Rioux v. Coulombe:
a. Suicide note left on disk which contained unsigned directions of a testamentary
nature
b. Authenticity corroborated by diary
x.
xi.
xii.
xiii.
c. Court held unsigned electronic will not valid even though it was clearly authentic due
to no signature (probated under substantial compliance)
12. Delayed Attestation:
a. W watched T sign, but W does not immediately sign
b. NY: must attest w/in 30 days
c. UPC §2-502(a)(3)(A): could extend after death
Writing Requirement:
1. Need not be on paper – all that is required = a reasonably permanent record of the markings
that make up the will
2. Video wills: T records spoken will, puts DVD in sealed envelope and signs it = NOT VALID
– talking is not writing
3. Electronic wills:
a. Stricter requirements b/c finality harder to prove
b. Probably does not satisfy writing requirement but might be allowed under substantial
compliance doctrine or harmless error
4. Writing = a medium that allows markings to be detected (2nd Rstmt)
Interested Witnesses:
1. CL: if you have 2 Ws and one or more both take, not valid
2. Someone who takes under the will and is a witness
3. Estate of Morea:
a. Issue: whether the bequest to decedent’s friend George is void in light of the fact that
he was a W and decedent’s son was also a W (but was receiving less than required)
b. Holding: disposition to George was NOT VOID b/c there were 2 other Ws besides
him to the will who received no beneficial disposition
4. Purging Statute: attestation by an interested witness does not invalidate the will but the
interested witness takes NOTHING under the will OR purged of any amount he would have
gotten in intestacy
a. In Morea, court held that the son was not benefitting from the will b/c he was taking
less than intestacy would have given him so he was able to be a witness to the will
and still take
5. MO §474.330(2): does not strike down because interested W, BUT no more able to take than
intestacy
6. CA: devise to a W triggers a rebuttable presumption of undue influence, duress, or fraud
7. UPC: disinterested W not required but the use of interested Ws may invite litigation
Model Execution Ceremony:
1. Script to follow
Self-Proving Affidavit
1. If Ws are dead or cannot be located to testify in court
2. Self-proving affidavit recites that all requirements of due execution have been complied with
permits the will to be probated expeditiously
3. Almost all states recognize them
4. UPC §2-504: authorizes two kinds:
a. (a) Authorizes a combined attestation clause and self-proving affidavit so that T can
Ws sign their names only once
i. One-step self-proving affidavit
b. (b) Authorizes a separate self-proving affidavit to be affixed to a will already signed
and attested
i. Must be signed by T and Ws in front of a notary after the T and Ws have
signed the will
ii. 2 step process permitted in more states
5. UPC §3-406(1) provides that if a will if self-proved, questions of due execution may not be
contested unless there is evidence of fraud or forgery affecting the acknowledgement or
affidavit
a. Does not limit contests on other grounds such as undue influence or lack of capacity
b. In states without §3-406 or similar provisions, a self-proved will may give rise to
only a rebuttable presumption of due execution
xiv. Safeguarding a Will
1. Recommend the original will be left with the lawyer
2. State v. Gulbankian:
a. There is little justification today because most people do have safe-keeping boxes
and if not, statutes provide for the deposit of a will with the register in probate for
safekeeping
b. Original should be left with the client
p. Curative Doctrines - Relief from Strict Compliance
i. Strict compliance rule creates a presumption of invalidity for an imperfectly executed will
ii. Unless every statutory formality is complied with exactly, the instrument is denied probate even if
there is compelling evidence of final intent
iii. Some courts have occasionally excused or corrected one or another innocuous defect in execution
iv. Other courts have taken the position that there can be no relief from strict compliance
v. There is a need for more principled way to avoid denying probate to an authentic but imperfectly
executed will (false negative)
vi. In re Pavlinko: 1959
1. Husband and wife accidentally sign each others will, wills are identical. W dies, no will
offered for probate, H dies, instrument signed by H but written for W.
a. Have to offer will he signed otherwise does not meet signature
b. Other will is exhibit, evidence of intent (asking cour tot read both wills together as
husband’s will, court doesn’t because they follow strict compliance.
2. The wills would have to be completely rewritten to be valid
a. Harmless error would have fixed this but not around
vii. In re Snide: 1981
1. Similar facts, husband and wife accidentally sign each other’s wills
2. Wills identical besides the names
3. Originally not admitted into probate
4. Reversed and allowed it this time – used substantial compliance
q. Substantial Compliance Doctrine – MO USES THIS
i. Key question: whether the manner in which an instrument was executed satisfied the purposes of the
Wills Act formalities
ii. If so, the instrument should be deemed in substantial compliance with the Wills Act and admitted into
probate
1. Does the noncomplying document express the decedent’s testamentary intent?
2. Does its form sufficiently approximate Wills Act formality to enable the court to conclude
that it serves the purposes of the Wills Act?
iii. In re Will of Ranney – 1991
1. T’s lawyer had meant to include at the end of the will a one-step self-proving affidavit but
mistakenly used the language for a two-step one
2. T and Ws signed the affidavit before a notary, and technically made a false declaration by not
executing the will in strict compliance
3. The court held that the will may be probated with clear and convincing evidence that it
substantially complies with the Wills Act
iv. Hierarchy of Substantial Compliance Errors:
1. Writing – permanence to the terms of the will
2. Signature – finality and genuineness of document
3. Attestation – protection against fraud, duress
v. Over time, substantial compliance evolved into something narrower than intended
1. In re Will of Ferree:
a. Ferree died of suicide, a last will and testament dated 1999 and filled in by hand on a
preprinted form was found near his body
b. The form was signed by him and notarized but not attested by Ws
c. The court held that this manner of execution did not substantially comply with the
Wills Act
d. Even if the notary was one W, they needed 2
e. The court reasoned that the substantial compliance doctrine does not allow for the
studied disregard of the formalities still required by statute
2. Courts in other states have likewise come to apply the substantial compliance doctrine
narrowly
3. Smith v. Smith: court held that a will signed by only 1 W when 2 were required could never
be in substantial compliance
r. Harmless Error Doctrine
i. Enacted first in South Australia
ii. Whereas the substantial compliance doctrine allows the court to deem a noncompliant will to be in
compliance with the Wills Act, the dispensing power statute enacted in South Australia allows the
court to excuse noncompliance if the error was harmless
iii. UPC §2-503: harmless error:
1. Although a document or writing added upon a document was not executed with §2-502, the
document/writing is treated as if it had been executed in compliance with that section if the
proponent of the document or writing establishes by clear and convincing evidence that the
decedent intended the document/writing to constitute:
a. The decedent’s will
b. A partial or complete revocation of the will
c. An addition/alteration of the will
d. A partial or complete revival of the formerly revoked will or a formerly revoked
portion of the will
iv. It placed the burden of proof upon the proponent of a defective instrument and by requiring the
proponent to discharge that burden by clear and convincing evidence it imposed procedural standards
appropriate
v. In re Estate of Hall
1. Couple had joint will, husband tears it up after draft of new will signed. Couple signs the
draft after attorney tells them it would be valid (JIC something bad happens between draft
and final will ceremony) if they signed it
a. Court says nah because there was never intent that it would be their final will.
b. RULE: Non-action doesn’t make a draft a will
i. Just because they never went back doesn’t impute intent of finality, because
when it was drafted, it was drafted as a draft and not a final will and
testament
vi. Hall is the authority for the proposition that the harmless error rule may be invoked to excuse a
defect in attestation
1. Restatement: writing cannot be excused, only in execution of the document can be excused,
lack of signature hardest to excuse
vii. In re Probate of Will and Codicil of Macool
1. Handwritten notes which led to another drafted, typed will that was unsigned and had
“rough” on it and she never saw it
2. Rough = draft = usually never final
3. She dies before seeing the will draft
4. Needed evidence that she intended finality
5. Court did not allow will into probate
6. Did not find clear and convincing evidence
7. What circumstances can non-will desires be admitted?
8. Adds a requirement to clear and convincing requirement in the absence of a signature:
a. The decedent actually reviewed the will in question
b. Thereafter gave his final assent to it
9. Suggests harmless error rule may be invoked to probate an unsigned instrument other
than in a switched wills case
s. Notarized Wills:
i. §2-502(a)(3) provides that a will is valid if it is signed by 2 Ws OR notarized
ii. Substitutes for witness attestation – same service
t.
Holographic Wills
i. Allowed in a little more than half of the states
ii. NOT allowed in MO/KS
1. However, MO can use holographic wills to be probated IF it deals with another state’s
property IF valid in the state created
iii. Defined: written by T’s hand and signed by T
iv. Need NOT be attested by witnesses
v. UPC §2-502(b-c) = holographic wills and extrinsic evidence
1. (b): Holographic wills need signature and material portions in T’s handwriting
2. (c): Intent that a document constitute T’s will can be established by extrinsic evidence
including portions of the document that are not in T’s handwriting
vi. In re Kimmel’s Estate (1924)
1. Letter from father to his 2 sons that is trying to be considered a will b/c he died the same day
he sent it
2. Mentions “if anything happens” and signed “father”
3. Court allowed the letter to be probated, found testamentary intent
4. Told sons to keep the letter – so its important
5. There was no substantial compliance or harmless error at this time
vii. Pros = low cost, functions as safety net, rarely results in litigation
viii. Cons = 43% of holographic wills do not name executor, inartful and can breed litigation, 24% lack
residual clause
ix. No requirement that the will be on paper = farmer trapped under machinery carves will into it before
dying
u. Conditional Wills
i. “If anything happens to me”
ii. Eaton v. Brown: I’m going on a trip and may not return, if anything happens…
1. Returns from trip but dies after
2. Still a valid will, most cases presume the language of a condition is not meant to be a
condition but rather a statement of inducement for making a will
v. Preprinted Wills:
i. In re Gonzalez:
1. Handwritten words may be read in the context of preprinted words – found to be a valid
holographic will – probate
2. Court not only looked to preprinted text to find testamentary intent but incorporated the
handwritten text
3. Could have tried to use harmless error instead
4. Gets probated even though it had notes in the margins and things crossed out which gave
doubt to final intent
5. He signed it twice though
6. Preprinted forms not great for finality because they can be viewed as a draft
ii. Two interpretative problems for signature:
1. Where and how the T must sign
a. In almost all states that allow holographic wills, T may sign at the end, at the
beginning, or anywhere else on the face of the document
b. If it is not signed at the end, though, there may be doubt T intended his name
elsewhere to be a signature
2. The extent to which the holograph must be in T’s handwriting
a. 3 generations of looking at them:
i. 1st Generation: must be entirely in T’s handwriting
1. About 1/3 of states
ii. UPC 1969: 2nd Gen: T’s signature and material provisions (what goes to
whom) in T’s writing
1. Verbs (devise, give, convey) need to be in T’s writing as well
2. Must make sense if preprinted portions aren’t there – surplusage
theory
3. About 1/5 of states
iii. UPC 1990: 3rd Gen: material provisions  material portions
1. No longer required verbs
2. Allows recourse to extrinsic evidence to establish testamentary intent
a. Letters, not witnesses testifying
3. Most common
w. Extrinsic Evidence
i. In re Estate of Kuralt
1. TV guy has real will with wife, writes letter to girlfriend indicating future intent to transfer
Montana property.
a. Letter shows he knows there’s another step before she can truly take
2. Court takes in extrinsic evidence like a fake transfer of property, other documents
a. Should not have been allowed because the extrinsic evidence is only allowed IN
ORDER TO SHOW INTENT FOR A DOCUMENT TO CONSTITUTE A
WILL AND HE HAS ANOTHER WILL, THUS IT’S CLEAR THAT THE
INTENT ISN’T THERE
b. Holo will can be a codicil
3. Differences from Kimmel:
a. Kuralt speaks in future tense as regards to property and there’s another will
b. Kuralt’s sophisticated knowledge of what’s needed for will should’ve stopped letter
from being probated
i. Kimmel didn’t necessarily know his letter couldn’t be a will. … “Kepp
this…” sentence shows he thinks of it as a will
4. Court found 1996 letter to GF was a valid holographic will and a codicil to the 1994 valid
will with his wife
5. Suspect ruling by court because letter was probably NOT intended to be a will
6. Allowed extrinsic evidence in
4. Revocation of Wills
a. 3 ways to revoke:
i. Subsequent writing/will or physical act
ii. DRR
iii. Operation of Law
b. UPC §2-507 (pg. 216)
i. Does not require the physical act to touch the words on the will
ii. Codicil revocation would be valid under UPC bc written on the back
iii. Questionable for will itself because written on separate page
c. MO §474.400
i. Subsequent writing can’t revoke a writing unless it meets all will requirements
ii. Includes same physical act verbs
iii. Thompson would be same result as MO today
d. Wills are ambulatory: subject to modification or revocation by T at any time prior to death
e. Harmless error applies to revocation as well
f. Codicil: a testamentary instrument that supplements, rather than replaces, an earlier will
i. The later codicil supersedes the earlier will to the extent of inconsistencies between them
g. Method: By Writing or Physical Act: all states permit revocation by:
i. A subsequent writing (will) executed with Wills Act formalities
1. Express revocation: I revoke all prior wills/codicils
2. Implied revocation: does not expressly revoke other wills but is inconsistent with them
a. Question is whether T intended the subsequent will to replace the prior will in whole
or part, or to supplement it
b. Modern view: UPC: treat a subsequent will that does not expressly revoke a prior
will but makes a complete disposition of T’s estate as presumptively revoking the
prior will by inconsistency (§2-507(c))
c. If the subsequent will does not make a complete disposition, it is instead viewed as a
codicil and any property not disposed of under it is disposed in accordance with the
prior will (§2-507(d))
ii. A physical act such as destroying, obliterating, or burning the will (revocatory act) with the
*intent to revoke*
h. An oral declaration that a will is revoked, without more, is NOT enough to revoke it
i. If a duly executed will is not revoked in accordance with the applicable statute, the will must be admitted to
probate
j. Partial revocations:
i. Allowed through codicils to amend the will partially or add something because it does not affect the
entire will (distribution) (not disposing the entire estate)
ii. Codicils have to qualify as wills themselves (but do not stand alone)
k. Revocation of a codicil does NOT destroy underlying will
l. BUT: will destruction or revocation DOES destroy codicils
i. A will is the dog, codicil is the tail, cannot stand alone
m. UPC does not list what are considered revocatory acts
n. Thompson v. Royall
i. Valid will, trying to revoke, instead of destroying it, a judge writes on the back of it that it is revoked
and has T sign it
ii. Wanted to keep the old will in case she decided to execute a new one and to use it as reference
iii. She died, jury found that the will and codicil were still valid
iv. Would have been considered a revocation under the UPC
v. The writing on the back was not in T’s handwriting, and was ineffective as a writing declaring an
intention to revoke
vi. She needed to write on the FRONT and touch the words of the will to be considered a physical
act
vii. Would have amounted to legal malpractice if she filed suit
o. In re Estate of Stoker
i. Stoker executed will in 1997 which named Gularte (his gf) as executor, and Gularte, Karotick, and
Stoker Trust (residual) as beneficiaries
ii. Stoker died in 2008 and his daughter filed objection claiming Stoker created a new will in 2005 which
removed Gularte and gave all to his kids Darin and Danene
iii. This 2nd will contained no witness signatures and was handwritten by Meier, a close friend, at the
word for word dictation of Stoker
iv. Court found it was valid and used harmless error and witness testimony to show there were 2
witnesses present
5. Presumption of Physical Act Revocation
a. Harrison v. Bird
i. Will for Daisy – duplicate originals so 2 around
ii. Daisy called lawyer and told him to revoke it
iii. The lawyer/secretary tore it into 4 pieces in the presence of the other and sent the 4 pieces in the mail
to Daisy – he believed he revoked it
iv. Daisy dies, letter from lawyer was found but the 4 pieces were never found
v. The will was not revoked in her presence so the lawyer tearing it up was not a valid revocation
vi. Court found that though the lawyer did not revoke it, since the 4 pieces were never found it was
considered to be a revocation even though she probably didn’t intend the act of throwing it away to be
a revocation
vii. Presumption that if you don’t have the will, and it was known that you had it at one point, the
testator revoked the will
1. If the will was last known in the possession of someone other than T, there is no presumption
of revocation but just lost
viii. If she destroys the duplicate, presumption she revoked it but that’s rebuttable
b. Partial Revocation by Physical Act
i. UPC §2-507 and most of state statutes authorize this
ii. Not allowed by MO in most situations – if it increases someone else’s share in the same devise
1. Oliver: gives the other 9 more, new devise, not allowed
2. Residual can get more though
iii. MO is one of the few states that allows for partial revocation by physical act, but if it enhances ahres
of others, it must meet wills statutory requirements:
1. UNLESS: whole devise is taken out so as to increase residuary share
2. Residuary share is not a new/distinct testamentary disposition, it is not intended to be a
definitive share until death actually occurs
3. Restatement does not make this distinction
iv. Thompson v. Royall: you can’t merge subsequent writing with physical act, just do one of them and
do it correctly
v. In a few states, wills cannot be revoked in part by an act of revocation and only revocable in party by
subsequent writing
vi. The partial revocation by physical act might rearrange the T’s dispositive plan without complying
with the formal requirements for making a will
vii. Physical acts are better revocations than writings
viii. A few cases have held that T can revoke a complete devise (car to A) but cannot rearrange the shares
in a single devise to increase the other devisee’s gift
1. $10k to A and B, residual to C
2. T later crosses out B
3. Under these cases, A’s gift cannot be increased, so A gets $5k and the other $5k goes to
residual C
ix. Ex: T executes will to 4 named relatives
1. After T’s death years later, her will is found in a stack of papers on her desk and A is crossed
out in pencil – no evidence it was actually T
2. UPC §2-507 = would allow it
3. State with no partial revocation by physical act = not allowed
4. MO §474.400: A out by cancellation? Presumption it was T, disregard if increases other 3
shares, option to have A’s ¼ into intestacy?
a. Presumption against intestacy so probably not
b. Residual likely to get A’s ¼
5. What if T’s will is a holograph?
a. I take A out of this devise
b. Subsequent writing that may not meet all requirement of Wills Act b/c no extra
signature
c. But all in his writing so no doubts to authenticity
d. Not sure when the signature actually happened
6. Dependent Relative Revocation
a. If T undertakes to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if T
would have not revoked the will but for the mistaken belief
b. Typical: T destroys a prior will under the belief that his new will is valid, but for some reason unknown to T
the new will is invalid
i. Court would disregard the revocation and probate the old will
c. LaCroix v. Senecal
i. Dupre died with a will and codicil, both admitted to probate
ii. Codicil replaced item 5 of will with a basically identical provision that clarified the full name of her
nephew
iii. Senecal was to get ½ and her husband was a witness to the codicil
iv. Question: whether the devise was void or valid because her husband was a witness
v. Applied DRR – presumption T preferred the old will compared to intestacy
vi. It is a rule of presumed intention rather than substantive law
vii. Court found here the sole purpose of the codicil was to correct a minor ID defect
viii. Senecal still gets her ½, DRR used to cancel revocation and probate first will
d. Partial revocation does NOT always involve DRR
i. DRR is a common law concept
ii. Harmless error applies too if state uses it
e. Ex: typed will - $1000 $1500 to CB
i. In a state that allows holographic wills:
1. Court did not see it as a valid holographic amendment to the will that he should get $1500.
2. California is a jurisdiction that refuses to look at the printed matter and will look only at
handwritten.
3. Pretty much no jurisdiction in the country that would call this a valid holographic will (the
crossed out and changed part)
4. Gen 1: requires everything to be in writing
a. Crossing through could operate as partial revocation
b. Since Gen 1 requires writing, and only the initialed change to the will is in writing,
this revocation essentially just revokes anything going to CB
c. Use DRR to receive dispositive objective of T
i. Intent: $1500
ii. No DRR: $0
iii. DRR: cancel revocation, give him $1000
5. Gen 2: material provisions be handwritten (only read handwritten)
a. $1500 to CB needs to be handwritten
b. Intent: $1500
c. No DRR: $0
d. DRR: $1000 cancel revocation
6. Gen 3: requires material portions to be handwritten
a. Extrinsic evidence can be used to fill the gaps, like the typed words
b. Intent: $1500
c. No DRR is required because harmless error rule applies to allow extrinsic evidence
ii. In a state that doesn’t allow partial revocation by physical act:
1. Dispositive object that fails is the increase in CB’s share, but there’s no revocation, so the
cross-out doesn’t do anything
2. CB gets $1000
iii. In a state that permits partial revocation by physical act:
1. The moment it’s crossed out, CB gets nothing
2. In order for the $1500 to stand, handwriting must meet will requirement
a. Not attested = CB gets nothing
3. DRR: cancel the revocation, CB gets $1000
4. Cannot increase the share
iv. UPC: will not a draft? Crossed out words directly, knows it’s a final copy
1. Harmless error does not require all handwriting – maybe allow $1500
v. MO: cannot get the $1500 because it increases his share and no Ws or signature which are required
under substantial compliance
vi. How to get $1000 back? Use DRR to cancel 2nd will and use 1st
1. T’s intent – to get CB money
vii. If it was $500 instead?
1. DRR: he gets $1000, no DRR he gets $0
2. Which is more consistent with probable intent
f. Will #1: To Judy I give $5000, Rest, residual to Mark
i. Will #2: I revoke to Judy because she is dead
ii. But Judy is actually alive so false statement about objective fact
iii. Codicil presumptively ineffective
g. When DRR is contrary to intent:
i. To John Nancy $5000
1. DRR would just give John $5000
ii. Not presuming DRR because not consistent with apparent intention of testator
1. Since no DRR, we’re allowing partial revocation by physical act and dropping the $5000 to
the residual instead
iii. If jurisdiction doesn’t allow holographic wills, write-ins will never stand
h. Limitations: with rare exceptions, courts have held that DRR applies only if:
i. There is an alternative plan of disposition that fails OR
1. Usually another will, duly or defectively executed
ii. If the mistake is recited in the terms of the revoking instrument or possibly is established by clear and
convincing evidence
iii. By limiting the doctrine, the kind of extrinsic evidence that can be considered is narrow
7. Revival of Revoked Wills
a. In re Estate of Alburn
i. 2 wills: Milwaukee will (1955) and Kanakakee will (1959)
ii. 1960: tears up K will and discards it
iii. Ripping up W2 does not bring back W1 under Wisconsin law – both were dead
iv. Court determined that the K will had been destroyed by deceased under the mistaken belief that by
doing so it would revive the M will which had been revoked by the revocation clause in the K will
(subsequent writing)
v. Admitted K will to probate by using DRR
1. Presumption against intestacy helped
b. Revival Currently
i. 2 groups of states:
1. Upon revocation of W2, W1 is revived if T so intends
a. Majority of states
b. Intent may be shown from circumstances surrounding the revocation of W2 or from
T’s contemporaneous or subsequent oral declarations that W1 is to take effect
c. UPC §2-509
2. A revoked will cannot be revived unless re-executed with testamentary formalities or
republished by being referred to in a later, duly executed will
a. Minority of states
ii. UPC §2-509
1. How was it revoked?
2. Was it revoked in whole or part? What did W2 do to W1?
3. (a): W2 wholly revokes W1
a. W2 destroyed by revocatory act
b. Does not revive W1 unless: the proponent of W1 shows that the decedent intended
the revocation of W2 to revive W1
4. (b): W2 partly revokes W1
a. W2 destroyed by revocatory act
b. Does not revive the rest of W1 unless: the party arguing against revival shows the
decedent did not intend the revocation of W2 to revive those parts of W1 that were
revoked by W2
c. Presumption of revival
5. (c): W2 wholly OR partly revokes W1
a. W2 revoked by W3
b. W3 does not revive W1 unless: the text of W3 indicates that such a result is what T
intended
iii. MO = §474.410
1. Combines UPC (a) + (b) into section 1, section 2 is (c)
2. If the second will, which revokes the first will, is thereafter revoked by a subsequent writing,
burning, tearing, cancelling, or obliterating by the testator, the first will remains revoked
unless it is evidence by circumstances of revocation, or from contemporaneous or subsequent
declarations, that the testator intended to revive the first will (then its revived)
iv. Question: is DRR necessary if you have harmless error?
1. Still need DRR in MO because no harmless error but substantial compliance
8. Revocation by Operation of Law
a. Revocation by Divorce
i. UPC §2-804
1. Treats as if divorced spouse OR their relatives predeceased
a. Doesn’t revoke any step-child gift that came from the marriage
ii. MO §474.420
1. Treat as if divorced spouse predeceases decedent
iii. UPC revokes to stepchildren after divorce, MO does not
iv. In almost all states, statutes provide that divorce revokes any provision in a will for the decedent’s
divorced spouse
v. In the remaining states, revocation allows only if the divorce is accompanied by a property settlement
b. Revocation by Marriage
i. MO §474.235
1. After-acquired spouse gets share they would get under intestacy unless omission was
intentional
2. Forced share would still go to spouse if intentional
3. To make up for spouse’s intestacy share, everyone else loses some or all of their share
ii. UPC §2-301
iii. A few states = a premarital will is revoked upon marriage
iv. Most states = premarital wills remain valid
v. “After-acquired spouse” = spouse who is acquired after you have made your will
vi. MO calls it: “share of omitted spouse” which incorrectly sounds like its omitting them
vii. Spouses get at least “forced share” but there’s the pre-nuptial agreements that can leave spouse out
c. Revocation by Birth of Children
i. MO §474.240
1. If T fails to provide in will for child born/adopted after execution of his will, omitted child
gets intestate share unless:
2. Intentional omission
3. When the will was so executed T had one or more kids and devised substantially all the estate
to the other parent of the omitted child
4. T provided for kid outside the will in lieu of a will provision
ii. UPC §2-301,302
iii. A few states: old common law rule that marriage followed by the birth of children revokes a will
executed before marriage
1. Not codified in the UPC and rapidly disappearing
iv. Almost all states: have pretermitted child statutes which give a child born after the execution of a
parent’s will, who are not mentioned in the will, a share in the parent’s estate
1. Some statutes include children born before the execution of the will as well as children born
after
2. If the statute is applicable, results in a revocation of the parent’s will to the extent of the share
given to the child under the statute
v. If T doesn’t provide for child b/c he thinks the kid is dead, kid receives intestate share
vi. Illegitimate kids are not child of male T unless during his lifetime or in the will the T recognized the
kid was his
COMPONENTS OF A WILL
1. 2 doctrines that can play a role in determining who takes by permitting extrinsic evidence to resolve the identity of
persons or property:
a. Incorporation by reference
b. Acts of independent significance
2. Integration:
a. Under this doctrine, all papers that are present at the time of execution and are intended to be part of the will
are treated as part of the will
b. In re Estate of Rigsby
i. 2 page will, unfastened, just folded together, documents offered to probate
ii. The will that was admitted to probate was only the first page
iii. Both pages were handwritten, but only the first was signed and the second page was just a numbered
list of personal property and who was to get it
iv. Second page was initialed at the top but not signed anywhere
v. Court affirmed, it MUST be made CLEARLY APPARENT that T intended that together they
constitute the last will and testament
vi. 2nd page conflicted in part with the first page and was probably a draft
3. Republication by Codicil
a. Publication = occurs when T conveys to the witnesses, by words or action, that a document is the T’s will
b. Republication by codicil doctrine: a validly executed will is treated as re-executed or republished as of the
date of the codicil
i. Doctrine applied only if updating the will carries out T’s intent
c. Ex: W1 in 1995, W2 in 2000 – wills are inconsistent
i. W1 = ring to A, W2 = ring to B
ii. Drafted codicil to W1 in 2005 to squeeze out W2
iii. So now W1+codicil were “published” in 2005 not 1995
iv. Latest will = W1 now, W2 is dead
v. A tool lawyers use to get back to W1 for some reason beneficial to the client
4. Incorporation by Reference
a. No MO statutory equivalent but it is in common law
b. UPC §2-510: a writing in existence when a will is executed may be incorporated by reference if the language
of the will manifests the intent and describes the writing sufficiently to permit its identification
i. Must be in writing
ii. Writing must exist at time of will execution
1. If not, that document must meet will requirement
iii. Language of will manifests this intention
iv. Must describe writing sufficiently to permit its identification
c. Can be absorbed into the will without testamentary formalities
d. Clark v. Greenhalge
i. A judge correctly concluded that specific writing bequests of personal property contained in a
notebook maintained by T were incorporated by reference into the terms of T’s will
ii. Fight over $1800 painting that was not mentioned in memorandum in 1972
iii. Memo modified in 1976, things crossed out, still no mention
iv. 1977: will executed, tangibles designated by memo or “known wishes”
v. Nurses see T writing in notebook in 1979
vi. 1980: T promises the painting to Ginny and writes it in notebook
vii. May 1980: codicil 1 duly executed, so everything in existence before then is now in will (including
the notebook saying painting to Ginny)
viii. November 1980: Codicil 2 executed, will now republished to this date
ix. Flexibility for T not needing a lawyer for every small change
e. Johnson v. Johnson
i. T, a lawyer, prepared 3 typed paragraphs stating that the document was T’s will and made various
bequests
ii. The typed text was not signed nor witnesses, and appeared to cut off mid sentence
iii. Beneath the typed part at the bottom T wrote the following by hand: to my brother James I give $10
only. This will shall be complete unless hereafter altered, changed, or rewritten
iv. T signed and dated the document
v. The court held that the valid holographic codicil incorporated the prior will by reference and
republished and validated the prior will as of the date of the codicil
f. Berry v. Trible
i. After a lawyer sent T a draft will, T made handwritten changes to it and signed each page at the
bottom
ii. On one page he wrote: I give and bequeath all, followed by an arrow pointing to her handwritten
notation of the intended beneficiary
iii. The court held that the document could not be probated as a holograph because the handwriting and
typed text were interwoven both physically and in sequence of thought
5. Subsequent Writings and Tangible Personal Property
a. UPC §2-513: allows T to dispose of tangible personal property by a separate writing, even if prepared after
the execution of T’s will, provided that the will makes reference to the separate writing
i. UPC allows T to reserve the power to make and then continue revising a list that bequests of tangible
personal property without additional testamentary formalities
ii. Adopted by a slim minority of states
iii. Writing MUST be signed
b. MO §474.333
i. 1) Must be in the handwriting* of testator or must be signed by testator
ii. (2) Must be dated*
iii. (3) Must describe items and devisees w/ reas. Certainty
1. May be referred to as one to be in existence at the time of testator’s death
2. May be prepared before or after execution of will
3. May be altered by testator after its preparation
4. May be writing that has no significance apart from its effect on the dispositions made by the
will
5. *=difference from UPC
6. Acts of Independent Significance
a. MO does not have statute, common law doctrine
b. Sometimes permits extrinsic evidence to identify beneficiaries of property passing under a will
c. If the beneficiary or property designations are identified by reference to acts or events that have a lifetime
motive and significance from their effect on the will, the gift will be upheld under this doctrine
d. UPC §2-512: doctrine essentially allows outside evidence that helps identify people who are supposed to take
or property that should be devised
i. Ex: $500 to each of my employees that worked for Company ABC at the time of my death
1. Employees are unnamed, so extrinsic evidence can help name them to see who worked at
ABC at time of T’s death
ii. Ex: to show “who gets X” or “what [car] Jane gets”
e. Big picture: Independent act=non-testamentary act
i. As long as there’s a purpose for that person or property to exist that is not testamentary, extrinsic
evidence allowed to identify those people or pieces of property
f. IMPORTANT: Items that are titled (car) do not pass under this doctrine
i. Like if you give A your car, give B the safe deposit box which has the title
ii. But if you have a Chevy at time of will but upgrade to Mercedes and you give A your car, A would
get the Mercedes despite Chevy at time of will
Contracts Relating to Wills
1. Can enter contract to make a will or contract not to revoke a will
2. To enforce, the K beneficiary must sue under the law of contracts to prove a valid K
3. If a party to a valid K dies leaving a will that does not comply with the terms of the K, the will is probated in
accordance with the Wills Act but the K beneficiary is entitled to remedy for breach
a. Some states = damages, others = specific performance
4. UPC §2-514: Contracts concerning succession
a. May be established only by:
i. Provisions of a will stating material provisions of the K
ii. An express reference in a will to a K AND extrinsic evidence proving the terms of the K OR
iii. A writing signed by the decedent evidencing a K
1. The execution of a joint/mutual will does NOT create presumption not to revoke the will
5. MO §474.155 is identical to UPC
6. At common law, the existence of mirror image wills created a presumption (implied K) to not revoke the will
a. Statute changes this presumption
7. Keith v. Lulofs
a. Lucy and Arvid made mirror image wills each leaving first to the surviving spouse then to Keith and Lulofs
equally
b. Keith (Arvid) and Lulofs (Lucy) were kids from previous marriages of each of them
c. Arvid dies, Lucy changes her will to exclude Keith who argues the wills were irrevocable
d. Court disagreed: a will does not become irrevocable or unalterable simply because it was drafted to
mirror another T’s will
8. In some cases, the court searched the language of a joint will for indications of agreement, sometimes finding that the
plural first-person pronouns like “we, our” indicated a contract not to revoke (Glass v. Battista)
a. Can be fixed by adding a provision saying whether the contract is subjection to revocation or not
CAPACITY TO MAKE A WILL
1. Law tries to balance the risk of giving effect to an involuntary act of testation with the risk of denying effect to a
voluntary one
2. Mental Capacity
a. Restatement: sound mind = capable of knowing and understanding in a general way:
i. The nature and extent of his property (super low standard)
ii. Natural objects of his bounty (people who are around you)
iii. Disposition that he is making of that property AND
iv. Must be capable of relating these together and forming a plan
v. Known as the Cunningham test for sound mind
b. This test for testamentary capacity is one of capability, not actual knowledge
i. The T need not be of average intelligence (half the population excluded)
ii. Just needs a “lucid moment” – low standard due to the presumption against intestacy
iii. Legal presumption of sanity
c. In re Wright’s Estate - 1936
i. Petition for probate of will, denied on grounds of testamentary incapacity
ii. Executrix appeals for insufficient evidence
iii. Wright died at 69, executed will 16 months before
iv. Left land and other things to people, gave lots only $1
v. Drawer of will, 2 Ws all say he was of unsound mind but still attested
vi. Did a lot of weird shit for sure “eccentric” testimony by many
vii. Burden is on the will contestant to prove lack of capacity
viii. Court reversed due to insufficient evidence and presumption of capacity
d. Capacity to make a will requires less than to make a contract or lifetime gift
i. Dead person does not need protection from economic loss
ii. Greater mental ability required for will than marriage tho lol
e. Wilson v. Lane - 2005
i. Executor Lane offered Greer’s will (1997) to probate
ii. Wilson challenged on capacity
iii. Court found no evidence of lack of capacity and probated it
iv. Mentally capable: if she has sufficient intellect to enable her to have a decided and rational desire as
to the disposition of her property
v. Drafting attorney and numerous others testified she was of sound mind
vi. Evidence introduced against: medical files mentioning dementia and Alzheimer’s and that decedent
was legally blind
vii. Medical diagnosis by itself not enough, need to show that at the time of the will execution she was
suffering and incapacitated
viii. Doctor never personally examined her and conceded that he wrote the files just to help her with her
eye problems and telephone bill
ix. Dr. notes =/= truth (calling in sick to work)
x. Jury found Greer lacked capacity but court reversed
1. Court hesitant to give jury final say because it would lead to a lot more wills being struck
down
xi. Evidentiary burden:
1. Proof of due execution ordinarily creates a presumption of capacity
2. There is a split of authority on whether the proponent or contestant has the ultimate burden of
persuasion if the contestant produces some evidence of incapacity
3. The majority rule is that the contestant has the ultimate burden of persuasion
4. Minority rule: goes to proponent after evidence of incapacity
3. Insane Delusion
a. A subset of mental incapacity
b. A person may satisfy the test for testamentary capacity but nonetheless be suffering from an insane delusion
that causes the entire will or a particular disposition to fail for lack of capacity
c. Not a medical concept – used as a legal concept to correct mistakes
d. Defined: a persistent belief which has no existence in fact, the testator adheres against all evidence and reason
to the contrary
i. It’s a false concept of reality
e. If there is any evidence to support the delusion it is not insane
i. A mistake is susceptible to correction if T is told the truth
ii. Under traditional law, courts do not reform or invalidate the will because of mistake, but will do so
resulting from insane delusion
f. To prevail: the contestant must show that both the testator labored under and insane delusion and that
the will or some part of it was a product of that delusion
i. Delusion must affect the disposition otherwise it will stand
g. Typical: false belief about a member of T’s family
h. In re Strittmater’s Estate – 1947
i. Dr. Smalley was Ms. Strittmater’s physician all her life
ii. She suffered from paranoia and split personality
iii. She never married and lived with her parents until their death, but her love for her parents changed
after that and she began to hate them
iv. Most of the evidence was written in margins of books when she was 40
v. Member of the National Women’s Party and ardent feminist
vi. She left money to the NWP and a claim that she was a raging feminist who hated men was her insane
delusion
vii. Court found she lacked capacity because she left $ to an organization and not to any family members
i. Breedon v. Stone – 2000
i. Contested probate of a holographic will executed by decedent after he was involved in a highly
publicized hit and run that killed the other driver in 1996
ii. 2 days later he killed himself
iii. Police discovered handwritten note signed by T when they searched his house
1. Left everything to Stone
2. Had previously executed a formal will in 1991 leaving stuff to other people
iv. Objected upon due to insane delusion and incapacity
v. Admitted the holographic will to probate
vi. Court found that T had used cocaine and alcohol for several years prior to death and on evening
before his death but contestants could not prove that his drug use made him of not sound mind when
he executed the will and that his suicide did not impact testamentary capacity
vii. His insane delusions regarding friends, government agencies did not affect or influence his
dispositions
j. Proving Insane Delusion:
i. Is the delusion sane?
1. Majority: a delusion is insane if there is some factual basis for it but a rational person could
not have drawn the same conclusion
2. Minority: if there is any factual basis for the delusion, it is not insane
ii. Did the delusion cause bequest?
1. Majority: insane delusion materially affected or influenced the will
2. Minority: insane delusion might have caused or affected the will
a. Presume causation if there is an insane delusion and unnatural disposition
iii. EX: old guy removes his wife from his will because he thinks she is cheating on him with their
neighbor and is sneaking out of a second story window and climbing down a tree to do so
1. Factual basis: anniversary letter addressed to her not on the couple’s anniversary
2. But the couple is super old, so it is considered an insane delusion
4. Undue Influence
a. Shown by overcoming of donor’s free will AND caused him to make a transfer he would not have
otherwise made
b. Protects against overreaching by a wrongdoer seeking to take an unfair advantage of a donor who is
susceptible on account of age, inexperience, dependence, physical/mental weakness
c. Relies mostly on circumstantial evidence and not direct evidence
d. Most common: caregiver or child
e. Presumption of UI if contestant shows a confidential relationship and one or more suspicious circumstances
f. Contestant has burden or proving a will was procedure by undue influence
g. A trier of fact may infer UI from circumstantial evidence that shows 4 factors:
i. The donor was susceptible to UI
ii. The alleged wrongdoer had an opportunity to exert UI
iii. The alleged wrongdoer had a disposition to exert UI
iv. There was a result appearing to be the effect of UI
h. Circumstantial evidence is admissible if it tends to prove or disprove one of those elements
i. IF confidential relationship + suspicious circumstances
i. Presumption of undue influence
ii. Shifts the burden of proving undue influence from the plaintiff to the person charged with the
influence; person charged must rebut the presumption
1. Rebut by show act in good faith throughout transaction and grantor acted freely, intelligently
and voluntarily
iii. Confidential relationships: Fiduciary, Reliant (nurses/caregivers), dominant-subservient relationship,
doctors/lawyers
iv. Suspicious circumstances: Will made in secrecy or haste, reasonable person would regard disposition
as unnatural, unjust or unfair, donor’s attitude toward others changed by reason of his relationship w/
the alleged wrongdoer
j. Unduly influenced will is considered “unnatural distribution”
i. Natural distribution follows consanguinity
k. In re Will of Moses
i. Old lady leaves all her shit to her much younger paramour who is ALSO a lawyer
ii. Paramour gets third party lawyer to write will and had no knowledge of what was in will which
STILL doesn’t rebut the presumption
l. Estate v. Lakatosh
i. Involves finances of old woman Rose and Roger siphoning money from her
ii. Roger began to perform odd jobs, failed to carry burden of proving absence of UE
 Bequests to Attorneys
o Many courts hold that a presumption of UI arises when an attorney-drafter receives a legacy excepted
when related
 Lipper v. Weslow
o Can a lawyer draft a will and take under the same will?
 If it’s your parents’ will, yes BUT can only take natural share (what you would take in intestacy)
o Problem in this case is there’s no proof of Frank overbearing mom
 Court says you need evidence of that overbearing
 Unethical Conduct
o MRPC: lawyer should not solicit gifts unless related
 Will Contest Planning
o Contest grounds:
 Most common = lack of capacity and UI
 Often alleged together, T’s mental status overlaps with susceptibility of UI
o Warning signs
 New testamentary scheme makes a radical disposition
 Multiple or blended families
 Imposes conditions that are likely to anger the beneficiary
 Makes a disposition to someone unpopular with T’s family
o Precautionary Measures
 Record building: recorded video discussions, professional examination for capacity, disinterested
witnesses, intervivos trust
1. Duress
a. UI crosses into coercion = duress
b. Lathan v. Father Divine
i. Claim that if not for the imprisonment and duress, she would have drafted a new will for them to take
under
ii. 3rd party intended legetee beneficiary of constructive trust if proven
iii. Court extending concepts
c. MO would also recognize this duress/fraud
2. Forms of Fraud
a. Fraud in the inducement: a misrepresentation causes T to execute or revoke a will, to refrain from executing
or revoking a will, or to include particular provisions in the wrongdoers favor
b. Fraud in the execution: a person intentionally misrepresents the character or contents of the instrument
signed by T which does not in fact carry out T’s intent
c. Proving causation: a donative transfer is invalid for fraud only if the donor would not have made the transfer
if the donor had known the true facts
3. Remedy: constructive trust for bad actor after probate or not probating some/all of the will
4. Tortious Interference with an Expectancy
a. Intentional interference with an expected inheritance or gift is a valid cause of action under the Restatement
b. Extends to expected inheritances the protection some courts have accorded commercial expectancies
c. P must prove that the interference involved tortious conduct, which under the cases includes undue influence,
duress, or fraud
d. Tort cannot be invoked if the challenge is based on the T’s mental capacity
e. It is not a will contest – seeking to recover damages instead
i. Not subject to the typically short statute of limitations on will contests but maybe not until the P could
have reasonable become aware of the claim
ii. May also recover punitive damages which almost never happen in will contests
iii. Most courts have recognized the tort requires P to pursue probate remedies if they are adequate and
may be barred if not
iv. Some courts allow the tort even if relief is available in probate
f. Preponderance of the evidence standard (compared to C/C in probate)
Will Construction
1. Process of determining the meaning that should be attributed to a will
2. “Homestead” couldn’t take the lawyer’s notes because of the plain meaning rule = no extrinsic evidence
3. Mistaken or Ambiguous Language in Wills
a. (1) COMMON LAW: Majority of states follow 2 rules that operate in tandem that bar the admission of
extrinsic evidence to vary the terms of the will
i. Plain Meaning or No Extrinsic Evidence:
1. Extrinsic evidence may be admitted to resolve certain ambiguities but the plain meaning
of the words of a will cannot be disturbed by evidence that the T intended another
meaning
ii. No Reformation Rule:
1. Courts may not reform a will to correct a mistaken term to reflect what the T intended to
say
iii. Usual justification is the worst evidence problem
b. Mahoney v. Grainger
i. 25 first cousins to share equally
ii. Transcribes cousins as “heirs”
iii. Lawyer wanted to introduce notes to show T wanted cousins but Ct. only looked at 4 corners of
the document
c. (2) Exceptions/Modified – Latent/Patent Ambiguity - MO
i. In re Estate of Cole
1. Decedent left a bequest to her friend for “two hundred thousand dollars ($25,000)
2. Found to be patently ambiguous and ruled for $25,000
3. Resorted to extrinsic evidence to clarify
4. Subject to 2 limitations
a. The surrounding circumstances should be examined first and direct evidence of
T’s intention should be considered only if the ambiguity or contradiction persists
b. Extrinsic evidence is to be used to determine whether the T meant by the words
used, not to determine an intent that cannot be found in the words employed in
the instrument
5.
ii. Patent ambiguity: evident on the face of the will
1. Extrinsic evidence not admissible to clarify under traditional law
2. The court is confined to the 4 corners even if the result is intestacy
3. Modern: extrinsic commonly allowed
iii. Latent ambiguity: involve instruments that describe a person or things in terms equally applicable
to more than one person when the surrounding circumstances are taken into account
1. “To my niece Sarah” when she has two nieces named Sarah
2. In most states extrinsic evidence is allowed to clarify
d. (3) UPC §2-805 and Restatement 12.1
i. The court may reform the terms of a governing instrument, even if unambiguous, to conform the
terms to the T’s intention if it is proved by clear and convincing evidence what the T’s intention
was and that the terms of the governing instrument were affected by a mistake of fact or law,
whether in expression or inducement
ii. Clear and convincing evidence for T’s intent to allow in stuff
1. Gets rid of previous 2
2. Malpractice suits go down
iii. No reformation rule guards against a finding of mistake – false positive
iv. But this comes at cost of denying relief even if there is overwhelming evidence of mistake and
T’s actual intent – false negative
v. Arnheiter v. Arnheiter
1. 304 Harrison Avenue transferred when she actually owned 317 Harrison Avenue
2. Plaintiff executrix applied to the court to correct the mistake
3. Falsa demonstratio non nocet – removed 304 from the will but didn’t add 317 – just left it
at Harrison Avenue
4. Court said it had no power to correct or reform a will or change any of the language
therein by substituting or adding words
Death of Beneficiary Before Death of Testator
1. Lapsed and Void Devises (Wills)
a. If a devisee does not survive T = devise fails = lapsed
b. CL = gift made by will is subject to a condition that the devisee survives T unless T states otherwise
c. Nearly all states have anti-lapse statutes
i. Substitute another beneficiary for dead beneficiary
d. UPC §2-605
i. Devisee needs to be a grandparent or lineal descendant of a grandparent
ii. Theory of presumed intent – substitute to descendants instead of lapse
iii. Anitlapse statute applies to a lapsed devise only if the devise bears the particular relationship to the
testator as required in the statute
iv. Statutes are designed to implement presumed intent, so they are default rules that yield to an
expression of T’s actual intent that is contrary to the statute
1. EX: T devises entire estate ½ to A and ½ to B but if A or B or both do not survive T, then
give such predeceased share to friend F
a. B predeceases, leaving her child C
b. A death, A gets half and F gets half
v. Words of Survivorship
1. Pg. 360 UPC §2-603(b)
2. “If he survives me” or “to my surviving children” are not, in the absence of additional
evidence, a sufficient indication of an intent contrary to the application of this section
3. EX: T devises land to son S if he survives me, residue to his wife W
a. S dies before T, leaving daughter D
b. Majority of cases have held the words of survivorship preclude anti-lapse statutes,
but UPC applies the anti-lapse statute anyway giving it to D
e. Common law rules:
i. (1) If specific (property) or general (amount of $) devisee dies before testator, devise lapses and that
person gets nothing.
ii. (2) If residuary legatee predeceases testator, then that part goes to intestacy (heirs)
iii. Partial lapse: 2 residuary legatees, one dies
1. NO RESIDUE OF A RESIDUE RULE: At common law, dead half goes intestate
iv. (3) Only common law lapse exception is a class gift
1. If one child predeceases, others split their share
Modern Rules:
i. MO Lapse statute: 474.465
1. (1) If one (specific or general) devise that’s not residue fails, goes to residue
2. (2) If partial lapse, dead share goes to the surviving legatee
a. T A and B (B gets all)
b. Thus, Missouri does not have the no residue of a residue rule
ii. MO Anti-Lapse statute: 474.460
1. If devisee is: (1) child; (2) grandchild; or (3) other relative (must be related by blood; see
table of consanguinity)
a. THEN goes to their lineal descendants
2. Anti lapse is presumed intent
3. If you don’t want anti-lapse statute to apply, put survivorship contingency (must survive to
take; i.e. “to my surviving children and their heirs”)
4. Does not prevent lapse, just substitutes a beneficiary
5. Substitute beneficiary is typically a spouse or descendant
iii. Class Gift: if one member of the class dies, the rest split his share
iv. Void devise goes to residue (giving half to dog or if devisee if already dead at time of will execution)
g. UPC chart page 373
f.
Statutes
UPC §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 the code, except as modified by 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 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 if that
individual or each member of that class had disclaimed his estate
a. (Essentially authorizes a negative will by way of express disinheritance)

UPC v. MO Statute Intestacy
o UPC 2-102 heir succession p. 68:
 (1) Surviving Spouse
 If no descendant or parent of decedent survives OR All decedent’s surviving descendants are
also descendants of the surviving spouse and SS has no other descendants THEN
o Gets entire estate
 If no descendant of decedent survives decedent, but a parent survives the decedent:
o First $300k plus ¾ of intestate balance
 If all decedent’s surviving descendants are also descendants of SS and the SS has one or more
surviving descendants who are not descendants of decedent:
o First $225k plus ½ of balance
 If one or more of decedent’s surviving descendants are NOT descendants of surviving spouse
o First $150k plus ½ of balance
 (2) Descendants
 (3) Parents
 (4) Parents’ Descendants (brothers/sisters, nieces/nephews of decedent)
o MO § 474.010
 (1) Surviving Spouse
 If no surviving issue of the decedent:
o Entire intestate estate
 If surviving issue, all of whom are also issue of the surviving spouse
o First $20k plus ½ balance
 If surviving issue, one or more of whom are not issue of SS
o ½ of intestate estate
 (2) Descendants
 (3) Parents, brother/sisters or their descendants of them equally
 (4) Grandparents, uncles/aunts or their descendants equally
o Surviving Spouse forced share
 MO:
 Forced share to spouse via will is 50%
 UPC:
 Based on term of years
o Surviving spouse must assert right to forced share
UPC §2-114(b): An adopted individual is the child of his adopting parents or parents and not of his natural parents, but
adoption of a child by the spouse of either natural parent has no effect on:
(i)
The relationship between the child and that natural parent or
(ii)
The right of the child or a descendant of the child to inherit from or through the natural parent
UPC §2-116: If a parent-child relationship exists, the parent is a parent of the child and the child is the child of the parent
for purpose of intestate succession by, from, or through the parent or the child
UPC §2-118(a): Regarding adoption, a parent-child relationship exists between an adoptive child and the adoptive parent
UPC §2-119(a): An adopted child and the child’s genetic parents do not have a parent-child relationship
UPC §2-119 exceptions
(b) Stepchild adopted by a Stepparent: a parent-child relationship exists between an individual who is adopted by the
spouse of either genetic parent and:
(1) The genetic parent whose spouse adopted the individual; and
(2) The other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to
inherit from or through the other genetic parent
(c) Individual adopted by Relative of Genetic Parent: a parent-child relationship exists between both genetic parents and
the individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a
genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or
through either genetic parent
(d) Individual adopted after death of both Genetic Parents: A parent-child relationship exists between both genetic parents
and an individual who is adopted after the death of both genetic parents, but only for the purpose of the right of the
adoptee or a descendant of an adoptee to inherit through either genetic parent
1990 UPC §2-705(c): adult adoption
In construing a dispositive provision of the transferor who is not the adopting parent, an adopted individual is not
considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the
adoption, as a regular member of the household the adopting parent
2008 UPC §2-705(f): presumptively excludes a person adopted after reaching the age of 18 from a class gift to the
adoptive parent’s children, issue, descendants, or heirs by someone other than the adoptive parent unless the adoptive
parent was the adoptee’s stepparent or foster parent or functioned as a parent of the adoptee before the adoptee turned 18
1990 UPC §2-109 Advancements
(a) If an individual dies intestate as to all or a portion of his estate, property the decedent gave during the decedent’s
lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against the heir’s intestate
share ONLY IF:
(i) The decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an
advancement or
(ii) The decedent’s contemporaneous writing or the heir’s written acknowledgement otherwise indicates that the
gift is to be taken into account in computing the division and distribution of the decedent’s estate
(b) For purposes of subsection (a) property advanced is valued as of the time the heir came into possession or enjoyment
of the property or as the time of the decedent’s death, whichever first occurs
(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the
division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides
otherwise
UPC §2-803 Slayer statutes:
Provides that the killer is treated as having disclaimed the property
UPC §2-1106
A disclaimant is treated as dying immediately before the victim
UPC §2-803(g): a final criminal conviction of a felonious and intentional killing is conclusive. Acquittal, however, is not
dispositive of the acquitted individual’s status as a slayer. In absence of a conviction, the court must determine whether,
under civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt, the
individual would be found criminally accountable for the killing. If so, the individual is barred
UPC §2-502: Execution, Witnessed or Notarized Wills; Holographic Wills
(a) Witnesses or Notarized wills: except as otherwise provided in subsection (b) and in sections 2-503, 2-506, and 2-513, a
will must be:
(1) In writing
(2) Signed by the testator or in the testator’s name by some individual in the testator’s conscious presence and by
the testator’s direction AND
(3) Either:
(A): Signed by at least 2 individuals, each of whom signed within a reasonable time after the individual
witnessed either the signing of the will as described in paragraph 2 or the testator’s acknowledgement of
that signature of acknowledgement of the will OR
(B): Acknowledged by the testator before a notary public or other individual authorized by law to take
acknowledgment
(b) Holographic Wills: A will that does not comply with subsection (a) is valid as a holographic will, either witnessed or
not witnessed, if the signature and material portions of the document are in the testator’s handwriting
(c) Extrinsic Evidence: Intent that a document constitute the testator’s will can be established by extrinsic evidence,
including, for holographic wills, portions of the document that are not in the testator’s handwriting
UPC §2-505(b): provides that a will is valid even if witnessed by an interested person and without purging the interested
witness of his devise
UPC §2-504 – self proving affidavits:
(a) authorizes a combined attestation clause and self-proving affidavit, so that the testator and witnesses sign their names
only once = one-step self-proving affidavit
(b) authorizes a separate self-proving affidavit to be affixed to a will already signed and attested
Must be signed by the testator and witnesses in front of a notary after the witnesses and testator have signed the
will
UPC §3-406(1): provides that if a will is self-proved, questions of due execution may not be contested unless there is
evidence of fraud or forgery affecting the acknowledgement of the affidavit. It does not limit contests on other grounds
such as undue influence or lack of capacity
UPC §2-515: provides for the deposit of a will with the clerk of the probate court before death
UPC §2-503: Harmless Error
Although a document or writing added upon a document was not executed in compliance with section 2-502, the
document/writing is treated as if it had been executed in compliance with that section if the proponent of the
document/writing establishes by clear and convincing evidence that the decedent intended the document/writing to
constitute:
(1) the decedent’s will,
(2) a partial or complete revocation of the will,
(3) an addition to or alteration of the will, or
(4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will
UPC §2-507: Revocation by Writing or by Act
(a) A will or any part thereof is revoked:
(1) By executing a subsequent will that revokes the previous will or part expressly by inconsistency; or
(2) By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose
of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by
the testator’s direction. For purposes of this paragraph, a revocatory act on the will includes burning, tearing,
canceling, obliterating, or destroying the will or any part of it. A burning, tearing or canceling is a revocatory act
on the will whether or not the burn, tear, or cancellation touched any of the words on the will
(Even if the writing on the manuscript cover and not the will itself would not qualify as an act of
cancellation under §2-507(a)(2), surely it would qualify as a revocation by subsequent writing under the
harmless error rule)
(c) Treats a subsequent will that does not expressly revoke a prior will, but makes a complete disposition of the testator’s
estate, as presumptively revoking the prior will by intestacy
(d) If the subsequent will does not make a complete disposition of the testator’s estate, it is instead viewed as a codicil,
and any property not disposed of under it is disposed of in accordance with the prior will
UPC §2-507 authorizes partial revocation by physical act
Restatement 3rd §4.3: Ineffective Revocation (Dependent Relative Revocation)
(a) A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation:
(1) in connection with an attempt to achieve a dispositive object that fails under applicable law OR
(2) because of a false assumption of law, or because of a false belief about an objective fact, that is either recited
in the revoking instrument or established by clear and convincing evidence
(b) The presumption established in (a) is rebutted if allowing the revocation to remain in effect would be more consistent
with the testator’s probable intention
UPC §2-509: Revival of a Revoked Will
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under section §2507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evidence from the
circumstances of the revocation of the subsequent will of from the testator’s contemporary or subsequent declarations that
the testator intended the previous will to take effect as executed
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under section 2507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the
subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked
part to take effect as executed
(c) If a subsequent will that revoked a will in whole or in part is thereafter revoked by another, later will, the previous will
remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived
to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
UPC §2-804: Revocation of Probate and Nonprobate Transfers by Divorce; No Revocation by Other Changes of
Circumstance
(b) Revocation Upon Divorce: Except as provided by the express terms of a governing instrument, a court order, or a
contract relating to the division of the marital estate made between the divorced individuals before or after the marriage,
divorce, or annulment, the divorced or annulment of a marriage:
(1) Revokes any revocable:
(A) Disposition or appointment of property made by a divorced individual to his former spouse in a
governing instrument and any disposition or appointment created by law or in a governing instrument to a
relative of the divorced individual’s former spouse
(B) Provision in a governing instrument conferring a general or nongeneral power of appointment on the
divorced individual’s former spouse or on a relative of the divorced individual’s former spouse
(C) Nomination in a governing instrument, nominating a divorced individual’s former spouse or a relative
of the divorced individual’s former spouse to serve in any fiduciary or representative capacity, including a
personal representative, executor, trustee, conservator, agent, or guardian; and
(2) Severs the interests of the former spouse in property held by them at the time of the divorce as joint tenants
with the right of survivorship transforming the interests of the former spouses into equal tenancies in common
(d) Effect on Revocation: Provisions of a governing instrument are given effect as if the former spouse and relatives of the
former spouse disclaimed all provisions revoked by this section, or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce
(f) No Revocation for Other Changes of Circumstances: No change of circumstances other than as described in this
section and in 2-803 effects a revocation
UPC §2-301: A premarital will remains valid in spite of a subsequent marriage, but a surviving pretermitted spouse is
entitled to an intestate share of the deceased spouse’s estate, unless it appears from the will that the omission was
intentional or the pretermitted spouse is provided for in the will or by a will substitute
UPC §2-302: Pretermitted child statutes, which give a child born after the execution of a parent’s will, and not mentioned
in the will, a share in the parent’s estate
UPC §2-510: Incorporation by Reference
A writing in existence when a will is executed may be incorporated by reference if the language of the will
manifests this intent and describes the writing sufficiently to permit its identification
UPC §2-513: Separate Writing Identifying Devise of Certain Types of Tangible Personal Property
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to
dispose of items of tangible personal property not otherwise specifically disposed of by the will – other than money. To be
admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must
describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at
the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the
testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made
by the will
UPC §2-512: Acts of Independent Significance:
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the
dispositions made by the will, whether they occur before or after the execution of the will, or before or after the testator’s
death. The execution or revocation of another individual’s will is such an event.
UPC §2-514: Contracts Concerning Succession
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date
of this article, may be established only by:
(i) Provisions of a will stating material provisions of the contract
(ii) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract or
(iii) A writing signed by the decedent evidencing the contract
The execution of a joint will or mutual (mirror) will does not create a presumption of a contract not to revoke the will or
wills.
UPC §2-805: Reformation to Correct Mistakes
The Court may reform the terms of the governing instrument, even if unambiguous, to conform the terms of the
transferor’s intention if it is proved by clear and convincing evidence what the transferor’s intention was and that the
terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement
UPC §2-605: Antilapse; Deceased Devisees; Class Gifts
If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of the execution
of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who
survives the testator by 120 hours take in place of the deceased devisee and if they are all of the same degree of kinship to
the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who
would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this
section whether his death occurred before or after the execution of the will