Law of Wills

Chapter One: Ethically Representing the Elderly Client

🧭 Overview

🧠 One-sentence thesis

Estate planning attorneys face unique ethical challenges when representing elderly clients because the potential for conflicts of interest, confidentiality breaches, and capacity issues requires careful navigation of professional duties to both the client and family members who may be involved.

📌 Key points (3–5)

Client identification is critical: The person who pays the bill or arranges the meeting is not necessarily the client; the attorney owes duties of competence, diligence, loyalty, and confidentiality only to the actual client.
Confidentiality vs. duty to inform: Attorneys face tension between keeping one co-client's secrets and informing another co-client of material facts, especially in joint representation of spouses.
Diminished capacity requires balance: Attorneys must maintain a normal attorney-client relationship with elderly or impaired clients while also taking protective action when the client cannot adequately act in their own interest.
Common confusion—family vs. client: Adult children often believe they can make decisions for elderly parents, but attorneys must recognize that only a court-appointed guardian has legal authority to act on behalf of an incapacitated person.
Third-party liability is expanding: Courts increasingly allow personal representatives and intended beneficiaries to sue attorneys for malpractice, relaxing traditional privity requirements.

⚖️ Foundational ethical duties

⚖️ Who is the client?

Client: The person whose interests are most at stake in the legal planning or legal problem, not necessarily the person who hires the attorney or pays the bills.

The attorney owes professional duties (competence, diligence, loyalty, confidentiality) to the client, not to the family.
This distinction is crucial in estate planning because family members may be involved and may have their own stake in the outcome.
Example: An adult child arranges and pays for a parent's estate planning meeting, but the parent is the client; the attorney's duties run to the parent alone.

⚖️ Joint representation is possible but risky

Attorneys may represent more than one family member (e.g., a married couple) in some situations.
When property interests are actually or potentially conflicting, joint representation creates ethical problems.
Informed written consent is required for joint representation when a potential conflict exists.
Don't confuse: The fact that an attorney has represented multiple family members in the past does not mean the attorney owes a duty to all of them in every future matter.

🔒 Confidentiality challenges in estate planning

🔒 The general duty of confidentiality

Model Rule 1.6(a): A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized, or the disclosure is permitted by exceptions.

Attorneys cannot share client information with family members without the client's approval.
The attorney should establish disclosure limitations during the initial consultation.
Some clients want full transparency with family; others demand complete confidentiality.

🔒 The "secret child" problem in joint representation

The A. v. B. case illustrates the conflict between confidentiality and the duty to inform:

Facts: A law firm jointly represented a husband and wife in estate planning. The firm separately represented a woman in a paternity action against the same husband. Due to a clerical error, the firm did not detect the conflict. The wife's will could ultimately pass her property to the husband's illegitimate child, but she did not know the child existed.
The tension: The firm owed a duty of confidentiality to the husband but also a duty to inform the wife of material facts affecting her estate plan.
Court's reasoning: The husband's deliberate omission of the child's existence constituted fraud on the wife. The husband used the firm's services to defraud his wife in preparing her estate.

🔒 When disclosure is permitted or required

Rule	When it applies	What it allows
Model Rule 1.6(b) (mandatory disclosure)	Lawyer reasonably believes disclosure is necessary to prevent death, substantial bodily harm, or substantial financial injury from a criminal/fraudulent act using the lawyer's services	Requires disclosure to proper authorities
Model Rule 1.6(c) (permissive disclosure)	Lawyer reasonably believes disclosure is necessary to rectify consequences of a client's criminal/fraudulent act in which the lawyer's services were used	Permits (but does not require) disclosure
New Jersey RPC 1.6 (broader than Model Rules)	Similar circumstances, but includes more situations where disclosure is permitted	More expansive authorization for disclosure than the ABA Model Rules

Key distinction: The ABA Model Rules are narrower than many state rules (like New Jersey's) in authorizing disclosure of confidential information.

🔒 Best practices for joint representation

The A. v. B. court and the Restatement recommend:

Disclosure agreement at the outset: Co-clients should explicitly agree on whether confidential information will be shared. The agreement can provide that:
- Any confidential information about one co-client will be shared with the other, OR
- Certain unilateral confidences will be kept confidential by the attorney.
Without a prior agreement: The Restatement gives the lawyer discretion to inform an affected co-client if "the immediacy and magnitude of the risk to the affected co-client outweigh the interest of the communicating client in continued secrecy."
On withdrawal: The lawyer may inform the affected co-client that the attorney has learned adverse information that the other co-client refuses to permit disclosure.

Don't confuse: A "waiver of conflict of interest" letter is not the same as an explicit agreement about sharing confidential information; the former addresses conflicts, the latter addresses what information will be disclosed.

🤝 Conflicts of interest

🤝 The general rule

Model Rule 1.7(a): A lawyer shall not represent a client if the lawyer's ability to consider, recommend, or carry out a course of action will be adversely affected by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests.

🤝 When does a conflict arise in estate planning?

The Chase v. Bowen case clarifies the boundaries:

Facts: Attorney Bowen had represented a daughter (Naomi), her mother, and the mother's business associates (the Lavenders) in various matters over time. Bowen then prepared a revised will for the mother that omitted Naomi and made major bequests to the Lavenders.
Naomi's argument: Because Bowen had represented all of them, he had a conflict of interest and should have disclosed it.
Court's holding: No conflict existed. A lawyer who prepares wills for various family members assumes no obligation to oppose any testator from changing the will, nor is the lawyer precluded from assisting in redrafting.

The principle: "A lawyer represents conflicting interests when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose."

Assisting a testator in changing a will does not create a duty to oppose the change on behalf of a previous beneficiary.
Don't confuse: Representing multiple family members in separate matters over time does not mean the attorney must get approval from all of them to represent any one in an unrelated matter.

🤝 When conflicts do arise

Conflicts are real when:

The attorney represents a testator and a devisee, and the new will benefits the devisee at the expense of others.
The attorney's loyalty to one client would require opposing the interests of another current client.
Example: If Bowen had been actively representing Naomi in a matter at the time he drafted the mother's new will, and the new will harmed Naomi's interests, a conflict would exist.

🧠 Representing clients with diminished capacity

🧠 The balancing act

Model Rule 1.14(a): When a client's capacity to make adequately considered decisions is diminished, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Even if capacity is diminished, the attorney must treat the client with attention and respect.
The attorney should meet privately with the client and give sufficient time for the client to explain what they want.
The client is entitled to all the rights and responsibilities of any other client.

🧠 When to take protective action

Model Rule 1.14(b): When the lawyer reasonably believes the client has diminished capacity, is at risk of substantial harm unless action is taken, and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including seeking appointment of a guardian.

Protective actions may include:

Consulting individuals or entities that can protect the client.
Seeking appointment of a guardian ad litem, conservator, or guardian.

🧠 The duty to communicate with appointed representatives

Model Rule 1.14, Comment 5: If the client has an appointed representative, the lawyer should ordinarily look to the representative for decisions on behalf of the client.

The In re Kuhn case illustrates the consequences of ignoring this duty:

Facts: Attorney Kuhn had done tax work and drafted a will for Jake Leno. A court later declared Jake incapacitated due to Parkinson's disease and dementia, appointing GAPS as full guardian/conservator with authority over all legal matters. Kuhn then drafted a new will for Jake without contacting GAPS.
Kuhn's defense: He believed he was respecting his client by listening to Jake's wishes and maintaining a normal attorney-client relationship.
Court's holding: Kuhn violated Rule 1.14. Once Jake was declared incapacitated and GAPS was appointed with full authority over legal matters, Kuhn was required to look to GAPS for decision-making authority. The new will was invalid because Jake lacked capacity to execute it.

Key principle: An adjudication of incompetency means the guardian stands in the place of the ward for decision-making. The attorney must communicate with the guardian, not just the incapacitated client.

Don't confuse: Giving a client "attention and respect" (Rule 1.14, Comment 3) does not override the requirement to obtain authority from a court-appointed guardian (Rule 1.14, Comment 5).

🧠 Warning signs of diminished capacity

From the Kuhn case and the hypothetical problems:

Court adjudication of incapacity or appointment of a guardian.
Medical diagnosis of dementia, Alzheimer's, Parkinson's with memory loss, or similar conditions.
Reports from caregivers, family, or third parties about cognitive problems.
Unusual financial behavior (e.g., withdrawing large sums and giving money to strangers).
Recent stroke or other medical event affecting cognition.

What the attorney should do:

If a guardian has been appointed, contact the guardian before taking any legal action on behalf of the client.
If no guardian exists but the attorney suspects diminished capacity and risk of harm, consider seeking appointment of a guardian.
Document the client's understanding and decision-making process.
Do not proceed with executing legal documents if the client lacks testamentary capacity.

📜 Duty to third parties: malpractice liability

📜 The privity problem

Traditionally, only a client in privity of contract with an attorney could sue for malpractice. This created a problem in estate planning:

A will "speaks at death"—by the time an error is discovered, the client is dead.
The client cannot sue, and traditionally, beneficiaries could not sue either.
Result: Estate planning attorneys were largely immune from malpractice liability.

📜 Personal representatives can sue

The Estate of Schneider v. Finmann case relaxed privity for personal representatives:

Facts: Attorney defendants represented a decedent in estate planning. The decedent transferred ownership of a life insurance policy multiple times, ultimately back to himself. At death, the policy proceeds were included in his taxable estate, increasing estate tax liability. The estate sued for malpractice.
Issue: Can a personal representative of an estate sue the estate planning attorney for negligent tax planning?
Holding: Yes. The estate "stands in the shoes" of the decedent and has capacity to maintain the malpractice claim. Privity exists between the personal representative and the estate planning attorney.

Rationale:

The attorney knows that minimizing the estate's tax burden is a central task.
Allowing the estate to sue does not create the problems of indeterminate liability that would arise if any beneficiary could sue.
Strict privity remains a bar against beneficiaries and other third parties absent fraud or special circumstances.

📜 Intended beneficiaries: the duty to draft correctly

The Simpson v. Calivas case (cited in Sisson) established that:

An attorney who drafts a will owes a duty to the beneficiaries to draft it non-negligently.
If the will fails to reflect the testator's intent due to negligent drafting, an intended beneficiary can sue.
Rationale: The injury to the beneficiary is obviously foreseeable, justifying an exception to the privity rule.

📜 Intended beneficiaries: no duty to ensure prompt execution

The Sisson v. Jankowski case limits liability for failure to execute a will promptly:

Facts: Decedent retained an attorney to prepare a will leaving his entire estate to his brother (the plaintiff). The attorney prepared the will and met with the decedent to execute it, but the decedent wanted to add a contingent beneficiary clause. The attorney left without having the will executed, returned later with a revised will, but determined the decedent lacked capacity. The decedent died intestate, and his estate was divided among multiple relatives, not just the plaintiff.
Plaintiff's claim: The attorney was negligent in failing to have the will executed promptly and in failing to advise the decedent to execute the draft will to avoid dying intestate.
Holding: No duty. An attorney does not owe a duty of care to a prospective will beneficiary to have the will executed promptly.

Rationale:

Potential for conflict: A prospective beneficiary may want prompt execution, but the testator may need time to reflect on estate planning options. Clients often change their minds after reviewing a draft will.
Undivided loyalty: Imposing liability would create an incentive for attorneys to pressure clients to execute wills summarily, interfering with the attorney's duty of undivided loyalty to the client.
Psychological complexity: Confronting a will can produce complex psychological demands requiring considerable reflection. Attorneys often prepare multiple drafts before a client is reconciled to the result.

Comparison of duties:

Duty	Owed to whom?	Rationale
Draft the will non-negligently	Intended beneficiaries	Testator and beneficiary have mutual interest in accurate drafting; injury is foreseeable
Ensure prompt execution	No duty to beneficiaries	Potential conflict between beneficiary's interest in prompt execution and testator's interest in time to reflect

Don't confuse: The duty to draft correctly (which benefits both testator and beneficiary) is different from a duty to ensure prompt execution (which could conflict with the testator's interests).

📜 Policy tension

The excerpt highlights competing policy considerations:

Favoring liability: Strong public interest in ensuring testators dispose of property by will; risk that intended beneficiaries will be deprived of substantial legacies.
Against liability: Risk of undermining the attorney's ethical duty of undivided loyalty to the client; potential for conflict between beneficiary and testator interests.

Courts have generally concluded that the risk of interfering with attorney-client loyalty outweighs the risk of harm to prospective beneficiaries in the prompt-execution context.

Chapter Two: Intestacy System (Basic Overview)

🧭 Overview

🧠 One-sentence thesis

The intestacy system provides a statutory framework for distributing the property of persons who die without a valid will, prioritizing descendants, then parents, then siblings and more remote relatives, based on the presumed intent that most people would want their property divided among close family members.

📌 Key points (3–5)

When intestacy applies: Controls distribution when a person dies without a will, when a will is invalidated, or when a will does not dispose of all property.
Core hierarchy: After the surviving spouse receives their share, the estate passes first to descendants (children, grandchildren, etc.), then to parents, then to siblings and their descendants, then to more remote relatives.
Representation systems: Three methods exist for dividing estates among descendants when some children predecease the decedent—English per stirpes, Modern per stirpes, and UPC per capita at each generation—each producing different results.
Common confusion: The three representation systems differ in where the initial division occurs (at the decedent's children's generation vs. the first generation with a living member) and how remaining shares are pooled and redistributed.
Special rules: Parental rights to inherit can be terminated for abandonment or abuse; advancements (lifetime gifts) may reduce a child's intestate share if documented in writing.

👨‍👩‍👧‍👦 Distribution hierarchy and basic principles

👶 Descendants take first

Descendant: All persons who proceed from the body of the decedent (children, grandchildren, great-grandchildren, etc.).

After the surviving spouse's share is determined (covered in the next chapter), the remainder goes to the decedent's descendants.
Parents and other ancestors inherit only if the decedent has no living descendants.
Example: LaToya dies intestate with four children and no spouse → estate divided into four equal shares, one per child.

📏 Two critical rules for representation

Rule One: Living parents block their children

Descendants whose parents survive the decedent do not receive a share.
Example: Miguel has three children (Juan, Carlos, Isabella). Carlos predeceased Miguel, leaving two sons (Manuel, Alejandro). Juan and Isabella survive Miguel. Result: Juan gets 1/3, Isabella gets 1/3, Manuel and Alejandro split Carlos's 1/3 (each gets 1/6). Juan's son Mateo and Isabella's children receive nothing because their parents are alive.

Rule Two: Extinct bloodlines are ignored

Once a bloodline dies out (a child dies without descendants), that share is redistributed among surviving siblings.
Example: Rebecca has three children (Noah, Jacob, Ava). Jacob predeceased Rebecca with no children. Result: Divide estate between Noah and Ava (each gets 1/2); ignore Jacob's line entirely rather than computing his 1/3 share.

🔼 Looking up and out when no descendants exist

No descendants → parents inherit (in about half of states; the other half give everything to the surviving spouse).
No descendants or parents → siblings inherit (first-line collaterals).
No first-line collaterals → more remote relatives (second-line collaterals: aunts, uncles, cousins).
Memory aid: "Look down for children, look up for parents, look out for siblings."

🌳 Three systems of representation

🏴󠁧󠁢󠁥󠁮󠁧󠁿 English per stirpes (strict per stirpes)

Where division occurs: Always at the generation immediately below the decedent, even if no one in that generation survives.
How it works: Divide into as many shares as there are living children plus deceased children with descendants. Each deceased child's share passes to their descendants.
Example: Lauren (widow) had two children (Jada, Cornell). Both predeceased her. Cornell left one child (Madison); Jada left two children (Aaliyah, Destiny). Result: Divide at Lauren's children's generation (2 shares). Madison gets Cornell's 1/2; Aaliyah and Destiny split Jada's 1/2 (each gets 1/4). Madison receives more than her cousins even though all are grandchildren.
Criticism: Treats grandchildren unequally based on how many siblings they have.

🇺🇸 Modern per stirpes (per capita with representation)

Where division occurs: At the first generation with at least one living member.
How it works: If any children survive, same result as English per stirpes. If all children are deceased, divide equally at the grandchildren's generation (or the first generation with survivors).
Example: Monica had four children, all predeceased her. She is survived by seven grandchildren. Result: Divide estate into seven equal shares (1/7 each). All grandchildren treated equally.
Difference from English: If all children predecease the decedent, grandchildren in the same generation share equally rather than taking unequal shares through their parents.
Adopted by almost half of U.S. jurisdictions.

⚖️ UPC per capita at each generation (1990 UPC)

Where division occurs: At the first generation with a living member (same as Modern per stirpes for initial division).
How remaining shares are pooled: Shares of deceased members at that generation are combined into one pot and divided equally among the next generation.
How it works:
1. Divide at the first generation with survivors.
2. Living members at that level each take one share.
3. Pool all shares of deceased members at that level.
4. Divide the pooled shares equally among all survivors in the next generation.
Example: Hillary had three children (Yvette, Raymond, Margaret). Margaret survives; Yvette and Raymond predeceased Hillary. Yvette left one child (Carmen); Raymond left two children (Kathleen, Russell). Result: Margaret gets 1/3. The remaining 2/3 (Yvette's and Raymond's shares) is pooled and divided equally among Carmen, Kathleen, and Russell (each gets 2/9). Under English or Modern per stirpes, Carmen would get 1/3 and Kathleen and Russell would each get 1/6.
Goal: Treat all members of the same generation equally (e.g., all grandchildren receive the same amount).
Adopted by fewer states; more complex to calculate.

📊 Comparison table

System	Where to divide	If all children deceased	Grandchildren treatment
English per stirpes	Always at children's generation	Divide at children's level anyway	Unequal (depends on parent's share)
Modern per stirpes	First generation with survivor	Divide at grandchildren's level	Equal within generation
UPC per capita at each generation	First generation with survivor	Divide at grandchildren's level, pool deceased shares	Equal within generation (pooled redistribution)

Don't confuse: Modern per stirpes and UPC per capita at each generation both start division at the first generation with a survivor, but UPC pools and redistributes remaining shares to ensure all members of the same generation receive equal amounts.

👴 Parents, collaterals, and remote relatives

👪 Parents' right to inherit

Parents inherit if the decedent has no descendants.
In about half of states, parents take even if there is a surviving spouse with no children.
Termination of parental rights: UPC § 2-114(c) bars inheritance by a parent who abandoned the child or refused support.
- Example (Fleming): Mother voluntarily terminated parental rights and surrendered infant for adoption. Court held termination order permanently divested her of "all maternal rights and interests," including intestate inheritance. Estate escheated to the state.
- Example (New Jersey Div.): Mother physically abused and abandoned three sons; one died while locked in basement. Court terminated parental rights posthumously and imposed constructive trust to prevent mother from inheriting $1 million settlement, directing funds to surviving brothers.
Policy: Protects children from "bad parents" profiting from their estates; many states have statutory exceptions for abandonment, abuse, or failure to support.

🧑‍🤝‍🧑 Collateral relatives

First-line collaterals: Siblings (and their descendants—nieces and nephews). Second-line collaterals: Aunts, uncles, and their descendants (cousins).

When they inherit: If no descendants or parents survive.
How siblings' shares work: Divide estate among living siblings; deceased siblings are represented by their children.
Example: Willis (never married, no children) had three sisters (Beverly, Cissy, Whitney) and one brother (Theo). Cissy predeceased Willis, leaving two sons (Vance, Donovan). Result: Beverly, Whitney, and Theo each get 1/4; Vance and Donovan split Cissy's 1/4 (each gets 1/8).

🌍 Determining more remote heirs

Two systems exist for identifying heirs beyond first-line collaterals:

Parentelic system (UPC approach):

Start at grandparents and work down their descendants.
If no survivors, move to great-grandparents and their descendants, etc.
Descendants of nearer ancestors exclude descendants of more remote ancestors.
Example (Wolbert): Decedent survived by first cousins (descendants of grandparents) and a second cousin (descendant of great-grandparents). First cousins take entire estate; second cousin excluded.

Degree-of-relationship system:

Distribute to the closest kin by degree of relationship (e.g., first cousin over fifth cousin).

😂 Laughing heirs

Laughing heirs: Relatives so remote they have no relationship with the decedent and might "laugh" upon learning of the inheritance.

Problem: Locating remote heirs is time-consuming and expensive.
UPC solution (§ 2-103(4)): Limits inheritance to descendants of the decedent, parents and their descendants, and grandparents and their descendants. No inheritance beyond this.
Majority of jurisdictions have adopted this limitation.

🏛️ Escheat

When it occurs: If no taker exists under intestacy statutes, the estate passes to the state (UPC § 2-105).
Rare in practice: People usually track wealthy relatives; heir-location companies search for missing heirs in exchange for a percentage of the estate.

💰 Advancements (lifetime gifts)

📜 What is an advancement?

Advancement: A substantial gift of money or property from a parent to a child during the parent's lifetime, intended to be counted against the child's intestate share.

Common law presumption: A significant lifetime gift was presumed to be an advancement; the child had the burden to rebut.
Modern statutes: Reverse the presumption—lifetime gifts are not advancements unless proven otherwise.

✍️ UPC approach (§ 2-109)

A lifetime gift is treated as an advancement only if:

The decedent declared in a contemporaneous writing that the gift is an advancement, or
The heir acknowledged in writing that the gift is an advancement, or
A contemporaneous writing indicates the gift should be counted in computing the estate distribution.

Valuation: Property is valued at the time the heir received it or at the decedent's death, whichever is earlier.
If heir predeceases decedent: The advancement is not counted unless the decedent's writing provides otherwise.

🍲 Hotchpot method (computing shares)

When an advancement is established, the court uses the hotchpot method:

Steps:

Add the value of all advancements to the probate estate → hotchpot estate.
Divide the hotchpot estate equally among all heirs.
Subtract each heir's advancement from their calculated share.
Distribute the probate estate accordingly.

Example: Zeda died intestate with four children (Denise, Jana, Melanie, Robert). Probate estate: $200,000. Zeda gave Denise $50,000 and Melanie $10,000 as advancements (documented in writing).

Hotchpot estate: $200,000 + $50,000 + $10,000 = $260,000.
Each child entitled to: $260,000 ÷ 4 = $65,000.
Distribution from probate estate:
- Jana: $65,000
- Robert: $65,000
- Denise: $65,000 − $50,000 = $15,000
- Melanie: $65,000 − $10,000 = $55,000

Don't confuse: An advancement is not a loan or investment. The key is the decedent's intent at the time of the gift. In Tankesley, the court found checks marked "investment" or "loan" and testimony that the mother intended equal distribution at death rebutted the advancement presumption.

🔍 Intent is key

The relevant inquiry is the decedent's intent at the time of the transaction.
Evidence may include: notations on checks, contemporaneous writings, testimony about the decedent's statements, and the decedent's overall estate plan.
Example (Tankesley): Mother wrote checks to son's business marked "investment" or "loan." Son testified mother said funds were investments and intended equal distribution at death. Court held: not advancements, but loans/investments.

🧾 Practical notes and policy considerations

🎯 Presumed intent vs. actual intent

Intestacy statutes aim to carry out the decedent's presumed intent.
The law presumes a reasonable person would want property divided among children, then parents, then siblings, etc.
Limitation: The system cannot account for individual preferences (e.g., a decedent might prefer an elderly parent over an estranged adult child, but the statute does not allow this).

⚖️ Equity and bad actors

Courts may invoke equitable principles to prevent unjust enrichment.
Example (New Jersey Div.): Court terminated mother's parental rights posthumously and imposed a constructive trust, holding that equity will not permit a wrongdoer to profit. The mother's abuse and abandonment disqualified her from inheriting, even though no statute explicitly barred her.
Slayer rule (N.J.S.A. 3B:7-1.1): An intentional killer forfeits all benefits from the victim's estate. Does not apply to non-killers (e.g., a parent whose neglect led to the child's death by another's hand).

📚 Defining "parent" and "child"

Traditional intestacy law recognizes biological and adoptive relationships.
Emerging theories (psychological parent, functional parent, intentional parent, de facto parent) may expand the definition of "parent" for custody and support purposes.
Impact on intestacy: If courts recognize non-biological parents, those individuals might gain inheritance rights, complicating estate distribution.
Question for policy: Should intestacy statutes incorporate these theories, or should courts apply them case-by-case?

🗂️ Half-blood vs. whole-blood relatives

UPC § 2-107: "Relatives of the half-blood inherit the same share they would inherit if they were of the whole blood."
Most jurisdictions treat half-siblings the same as full siblings.

🧭 Navigating complexity

Intestacy distribution can become complex when multiple generations are involved, some members predecease the decedent, and different representation systems apply.
Best practice: Encourage clients to execute wills to avoid intestacy and ensure their actual intent is carried out.

Budget used: Approx. 45,000 tokens (well within limit).

Chapter Three: Intestacy System (Surviving Spouse)

🧭 Overview

🧠 One-sentence thesis

The surviving spouse holds a unique and protected position in intestacy law, with rights that depend on proper spousal status, survival requirements, and statutory protections designed to prevent disinheritance.

📌 Key points (3–5)

Spousal status determines inheritance rights: only legally recognized spouses (including putative and common-law spouses in some jurisdictions) qualify for intestate shares; status depends on valid marriage, good faith belief, or statutory recognition.
Survival requirement: a spouse must survive the decedent by a statutory period (typically 120 hours under modern law) to inherit; simultaneous death rules apply when order of death cannot be determined.
Protection from disinheritance: surviving spouses receive priority over other heirs and are entitled to additional protections including homestead allowances, exempt property, and family support allowances.
Common confusion—putative vs. common-law spouse: a putative spouse believes in good faith they are married despite a legal defect, while a common-law spouse knows no formal ceremony occurred but meets statutory cohabitation and holding-out requirements.
UPC approach: the Uniform Probate Code provides a structured framework for spousal shares that varies by length of marriage and distinguishes between community and separate property.

🏛️ Defining "Spouse" for Intestacy

💍 Traditional legal spouse

Legal spouse: a person validly married to the decedent at the time of death, whose marriage has not been dissolved, annulled, or terminated.

The clearest case: formal marriage ceremony, valid license, no impediments.
Marriage must still be in effect at death—divorce or annulment terminates spousal status.
Example: A man and woman marry in 1954; neither divorces; when the husband dies in 1982, the wife is the surviving spouse even if they lived apart for decades.

🤝 Putative spouse

Putative spouse: a person who believes in good faith that they are validly married, even though the marriage is legally void or voidable due to some defect unknown to them.

Good faith belief is essential: the person must genuinely believe the marriage is valid.
Common scenario: one party is still married to someone else (bigamy), but the putative spouse does not know this.
Loss of status: if the putative spouse learns of the defect and continues the relationship, putative status ends.
Example: A woman participates in a marriage ceremony with a man who tells her he is divorced; she believes him and lives as his wife; years later he dies, and she learns his prior marriage was never dissolved—she may still qualify as a putative spouse because of her good-faith belief.

🔍 Rights of putative spouses

Quasi-marital property: property acquired during the putative marriage is treated as if it were community property and divided accordingly.
Intestate succession: many jurisdictions (following Estate of Leslie) allow a putative spouse to inherit from the decedent's separate property just as a legal spouse would.
Rationale: it would be unjust to deny inheritance rights to someone who acted as a spouse in good faith and contributed to the relationship.
Don't confuse: a putative spouse is not simply someone in a long-term relationship; there must be a ceremonial marriage (even if defective) and a genuine belief in its validity.

⚖️ Competing claims: legal spouse vs. putative spouse

When both a legal spouse and a putative spouse survive the decedent, courts must allocate the estate.
General rule (Estate of Ricci, Sousa v. Freitas):
- The putative spouse receives one-half of the quasi-marital property (property acquired during the putative marriage).
- The legal spouse receives the other one-half of that property as part of the legal community estate.
- The legal spouse also retains rights to any property not acquired during the putative marriage.
Estoppel exception: if the legal spouse acquiesced in or relied on the invalid marriage (e.g., remarried based on a void divorce), they may be estopped from challenging the putative spouse's rights.
Example (Estate of Hafner): A man marries in 1954, abandons his wife, then "marries" another woman in 1963 without divorcing the first wife; he dies in 1982; the court awards half the estate (acquired during the putative marriage) to the putative spouse and half to the legal wife and children of the legal marriage.

🏡 Common-law spouse

Common-law marriage: a marriage formed without a formal ceremony or license, recognized in some states if the couple meets statutory requirements such as cohabitation, mutual agreement to be married, and holding themselves out as spouses.

No formal ceremony required, but the couple must intend to be married and act accordingly.
Recognition varies by state: only a minority of U.S. states recognize common-law marriage (e.g., Colorado, Texas, Kansas, South Carolina).
Interstate recognition: a valid common-law marriage in one state is generally recognized in other states, even those that do not allow common-law marriages to be formed within their borders.

📋 Requirements for common-law marriage

Mutual agreement or declaration of intent to marry: the couple must agree they are married (not just plan to marry in the future).
Cohabitation: the couple must live together as spouses.
Holding out: the couple must present themselves to the community as married (e.g., using the same last name, filing joint taxes, referring to each other as husband/wife).
Capacity: both parties must be legally capable of marrying (e.g., not already married to someone else).
Proof: the party claiming common-law marriage typically must prove these elements by clear and convincing evidence.

🚫 Distinguishing common-law from other relationships

Don't confuse with: mere cohabitation or a long-term relationship without intent to marry.
Key difference from putative spouse: a common-law spouse knows there was no formal ceremony, while a putative spouse believes there was a valid marriage.
Example (In re Estate of Duval): A couple lives together for years, buys property as "husband and wife," and refers to each other as spouses, but never has a formal ceremony; if they meet the state's requirements, they may be common-law spouses—but if they never mutually agreed to be married (only had an "implicit" understanding), they do not qualify.

🌎 Concubinage vs. common-law marriage

Some jurisdictions (e.g., Mexico) recognize concubinage, a legal relationship that grants certain rights but is not equivalent to marriage.
U.S. courts generally do not treat concubinage as common-law marriage because it does not confer all the rights and duties of marriage.
Example: A couple lives together in Mexico for over five years, meeting the definition of concubinage under Mexican law; when one dies, U.S. courts will not treat the survivor as a common-law spouse for inheritance purposes.

🏳️‍🌈 Same-sex spouse

Historical exclusion: the term "spouse" traditionally referred only to opposite-sex marriages.
Current law: following Obergefell v. Hodges (2015), same-sex marriages are constitutionally protected nationwide.
Intestacy rights: same-sex spouses now have the same inheritance rights as opposite-sex spouses in all U.S. jurisdictions.
Retroactive application: some courts have applied marriage equality retroactively to recognize common-law same-sex marriages formed before formal recognition.

🚧 Barriers to Spousal Status

⚖️ Legal separation

Legal separation: a court judgment that resolves financial and property issues between spouses but does not dissolve the marriage itself.

Marriage remains intact: the parties are still legally married after a legal separation.
Property rights terminated: a legal separation typically divides marital property and may terminate spousal support rights.
Effect on intestacy (Estate of Lahey): if a spouse obtains a legal separation that terminates "all marital property rights," they are disqualified as a surviving spouse under statutes like Probate Code § 78.
Rationale: the statute excludes not only divorced spouses but also those whose marital property rights have been conclusively adjudicated.
Example: A wife files for legal separation, declaring no community property exists and waiving spousal support; a judgment is entered; two months later, the husband dies intestate; the wife is not a "surviving spouse" because the judgment terminated her marital property rights, even though the marriage was not dissolved.

🚪 Abandonment

Abandonment: willful desertion of a spouse without just cause, often for a continuous statutory period.

Statutory disqualification: many states bar a spouse who abandoned the decedent from inheriting.
Elements (e.g., N.C. Gen. Stat. § 31A-1):
1. Willful abandonment without just cause.
2. Refusal to live with the other spouse.
3. Not living with the other spouse at the time of death.
All three elements required: abandonment alone is insufficient; the abandoning spouse must also be absent from the marital home at death.

🏠 Constructive abandonment

Concept: a spouse remains in the marital home but fails to fulfill marital duties (e.g., refuses financial or emotional support).
Rejected in most jurisdictions (Estate of Joyner): courts require physical absence from the home, not just failure to perform marital duties.
Example: A husband and wife live in the same house; the husband sleeps in a separate bedroom, refuses to provide financial support, and engages in extramarital relationships; when the wife dies, the husband is still a "surviving spouse" because he was not absent from the home at the time of her death.

⏱️ Survival Requirement

🕰️ Common-law rule

No presumption: at common law, there was no presumption of survivorship or simultaneous death.
Burden of proof: the party claiming survivorship had to prove by a preponderance of the evidence that one person survived the other.
Even momentary survival sufficed: if one spouse survived the other by even an instant, that spouse could inherit.

📜 Original Uniform Simultaneous Death Act (USDA)

USDA rule: if there is "no sufficient evidence" of the order of deaths, each person is deemed to have predeceased the other, so neither inherits from the other.

"Sufficient evidence" standard: courts had to determine case-by-case whether evidence was sufficient to establish survivorship.
Inconsistent results: the vague standard led to unpredictable outcomes.
Example (Matter of Bausch's Estate): Death certificates stated the wife died at 8:00 a.m. and the husband at 7:55 a.m.; the court held this was sufficient evidence that the wife survived by five minutes, so the USDA did not apply.

⏲️ Modern rule: 120-hour survival requirement

UPC § 2-104 and modern USDA: an heir must survive the decedent by 120 hours (five days) to inherit; if survival for 120 hours is not established by clear and convincing evidence, the heir is deemed to have predeceased the decedent.

Bright-line rule: eliminates case-by-case disputes over momentary survival.
Clear and convincing evidence: the burden is on the party claiming the heir survived for 120 hours.
Exception: the rule does not apply if it would result in the estate passing to the state (escheat).
Example: A husband shoots his wife at 8:59 p.m. and then shoots himself at 10:55 p.m. the same night; under the 120-hour rule, the wife is deemed to have predeceased the husband because she did not survive him by 120 hours, even though she died first.

🩺 Life support and survival

Problem: the 120-hour rule does not fully resolve cases where one spouse is kept on life support.
Practical solution: most estate-planning attorneys include survival clauses in wills requiring survival by 30 or 60 days to avoid disputes.
Example: A husband and wife are both placed on life support after an accident; the husband is taken off life support on day 2 per his living will; the wife is kept on life support until day 5 when her sister arrives and consents to removal; the order of death may depend on when doctors pronounce death, not when life support is removed.

💀 Defining death

Brain death: the irreversible cessation of all functions of the entire brain, including the brain stem, according to usual and customary medical standards.

Legal recognition: most jurisdictions recognize brain death as legal death, even if the heart continues to beat with mechanical support.
Alternative definition: death may also be defined as irreversible cessation of circulatory and respiratory functions.
Rationale: modern medicine can sustain heartbeat and breathing artificially, so cessation of brain function is a more accurate indicator of death.
Example (In re Haymer): A seven-month-old child is declared brain dead on October 23 after tests show no brain activity or blood flow to the brain; the child's heart stops on November 28; the court holds the legal date of death is October 23, when total brain death occurred.

🛡️ Protections for Surviving Spouses

🏠 Homestead allowance

Purpose: to protect the family home from creditors and ensure the surviving spouse and minor children can remain in the residence.
Varies by state: some states provide a monetary allowance; others grant a life estate or fee simple interest in the home.
Exempt from creditors: the homestead allowance typically takes priority over unsecured creditors' claims.

🪑 Exempt property (personal property set-aside)

Purpose: to allow the surviving spouse to retain essential household items and personal effects.
Typical items: furniture, clothing, automobiles, and other tangible personal property.
UPC limit: $15,000 (subject to cost-of-living adjustment).
Example: A decedent's estate includes household furniture worth $10,000 and two cars worth $20,000; the surviving spouse may claim up to $15,000 of this property free of creditors' claims.

💵 Family allowance

Purpose: to provide temporary financial support to the surviving spouse and minor children during estate administration.
Duration: typically for one year or until the estate is closed, whichever is shorter.
Reasonable amount: the court determines a reasonable allowance based on the family's needs and the estate's resources.
Priority: the family allowance takes priority over unsecured creditors if the estate is insolvent.

👑 Dower (historical; retained in a few states)

Dower: a common-law doctrine granting a surviving widow a life estate in one-third of all land the husband owned during the marriage that was inheritable by their descendants.

Abolished in most states: replaced by modern elective-share statutes.
Gender-neutral in remaining states: where dower still exists, it typically applies equally to surviving husbands and wives.
Inchoate right: dower attaches when the husband acquires title to land (or upon marriage, whichever is later) and cannot be defeated by the husband's unilateral conveyance.
Example (Armstrong v. Armstrong): A husband quitclaims his interest in the marital home to his children without his wife's consent; when he dies, the wife retains her dower interest (a life estate in one-third of his former interest) because she did not relinquish it.

📊 UPC spousal share structure

The UPC provides different intestate shares depending on the presence and relationship of descendants:

Scenario	Spousal Share
No descendants or parents survive	Entire estate
All descendants are also descendants of surviving spouse, and spouse has no other descendants	Entire estate
No descendants survive, but a parent survives	First $200,000 + 3/4 of balance
All descendants are also descendants of surviving spouse, but spouse has other descendants	First $150,000 + 1/2 of balance
One or more descendants are not descendants of surviving spouse	First $100,000 + 1/2 of balance

Rationale: the UPC adjusts the spousal share based on competing interests of children from prior relationships.
Example: A woman dies intestate survived by her husband and three children (two from her prior marriage, one with her husband); the husband receives the first $100,000 plus half the remaining estate; the three children share the other half.

💰 Other resources

Social Security survivor benefits: a one-time $255 death benefit plus ongoing monthly benefits if the surviving spouse meets age or disability requirements.
Retirement benefits: federal law (ERISA, Retirement Equity Act) requires that surviving spouses receive a share of the decedent's pension or retirement plan unless waived.
Life insurance: if the surviving spouse is named as beneficiary, proceeds pass outside probate and are not subject to creditors' claims (in most states).

🧮 Elective Share and Marital Property

🔢 Traditional elective share

Concept: a surviving spouse may "elect against" the decedent's will and take a statutory share (typically one-third) of the estate instead.
Purpose: to prevent disinheritance by ensuring the surviving spouse receives a minimum share.
Calculation: traditionally, the elective share is a fixed percentage of the "net estate" (probate assets minus debts, expenses, and family allowances).

🤝 Partnership theory (modern UPC approach)

Marital partnership theory: marriage is an economic partnership; each spouse is entitled to half the marital property accumulated during the marriage.
Augmented estate: the UPC includes both spouses' assets (probate and nonprobate) in calculating the elective share, reflecting the partnership concept.
Phased-in percentage: the elective share increases with the length of the marriage (e.g., 3% per year, up to 50% after 15 years).
Not adopted uniformly: many states, including Tennessee, adopted only parts of the UPC approach, leading to interpretive difficulties.

📉 Reductions and offsets

General rule: the elective share is reduced by the value of property the surviving spouse receives from the decedent (e.g., life insurance, joint tenancy property, gifts).
Ambiguity (In re Estate of Soard): if the statute deducts homestead, exempt property, and family allowance from the gross estate to arrive at the "net estate," should these items be deducted again from the surviving spouse's percentage share?
Court's holding: deducting these items twice is illogical and absurd; they should be deducted only once (when calculating the net estate), not again from the elective share.
Example: A decedent's gross estate is $872,253; after deducting debts, expenses, and the spouse's $56,505 in statutory allowances, the net estate is $707,545; the spouse's 30% share is $212,263; the court holds the spouse receives $212,263 minus other property received from the decedent, but not minus the $56,505 already deducted.

🏘️ Community property vs. separate property

Community property states: property acquired during marriage from earnings is owned equally by both spouses; each spouse may dispose of their half at death.
Separate property states: property belongs to the spouse who acquired it; the surviving spouse has statutory rights (elective share, dower, etc.) but does not automatically own half.
Effect on intestacy: in community property states, the surviving spouse already owns half the community property; the decedent's half passes by intestacy or will.

Note: This excerpt focuses on the surviving spouse's rights in intestacy. It does not cover the rights of other heirs (descendants, parents, siblings) or the detailed mechanics of estate administration. The cases illustrate how courts interpret statutes to balance the interests of surviving spouses, children from prior marriages, and creditors.

Chapter Four: The Intestacy System (Marital and Adopted Children)

🧭 Overview

🧠 One-sentence thesis

Under intestacy law, marital and adopted children generally receive preference as "first tier" heirs, but the scope of inheritance rights—particularly for adopted children—depends heavily on whether the adoption was formal, equitable, adult, or stepparent, and on the specific statutory framework in effect at the time of the decedent's death.

📌 Key points (3–5)

Marital children inherit automatically from both parents under the marital presumption of paternity, even if born posthumously (within a statutory period).
Adopted children are treated as legal children of adoptive parents once a final decree is entered, severing ties with biological parents in most jurisdictions—but stepparent adoptions preserve the child's relationship with both natural parents.
Equitable adoption allows a child to inherit from (but not through) an intended adoptive parent when a contract to adopt was performed but never formalized, protecting the child's reliance on the adoptive relationship.
Adult adoption is permitted in many states, but courts split on whether adult adoptees can inherit through their adoptive parents (from collateral kin), with older statutes often applying a "stranger to the adoption" rule.
Common confusion: Distinguish inheriting from (the adoptive parent's own estate) versus inheriting through (from the adoptive parent's relatives); equitable and adult adoptions often limit the latter.

👶 Marital children and posthumous birth

👶 Who qualifies as a marital child

Marital children: children born during the marriage of their parents, who are presumed to be the children of the mother's husband.

Under the marital presumption of paternity, a child born during marriage is legally the child of the mother's husband, even if the child resulted from an extramarital affair.
The presumption can be rebutted by DNA evidence showing no genetic relationship.
Some jurisdictions apply a best-interests-of-the-child standard: paternity may be rebutted only if doing so serves the child's best interests—rarely the case.
Why it matters: Marital children are "third-party beneficiaries" of the marital contract and inherit without additional proof of relationship.

⏳ Posthumously born children

A child born after the father's death is treated the same as a child alive at the father's death, if born within the statutory gestation period.
Traditional rule: Courts allowed inheritance if the child was born within the normal gestation period (no fixed deadline).
Modern rule (UPC § 2-108): The child must be "in gestation" at the father's death and live at least 120 hours after birth.
Uniform Parentage Act: Rebuttable presumption that a child born within 300 days of the husband's death is his child.
Burden of proof: If born after 280 days (or the statutory cutoff), the child or guardian must rebut the presumption that the child is not the decedent's.
Example: In Morrow v. Scott, a first cousin born within the gestation period after the intestate's death was entitled to a distributive share, applying the maxim "equity considers that done which ought to be done."

🤔 Don't confuse: Gestation period vs. survival requirement

Gestation period = child must have been conceived before death and born within statutory window.
Survival requirement (UPC) = child must survive the decedent by 120 hours to inherit.
Both must be satisfied.

🏛️ Legal adoption: General principles

🏛️ Effect of a final adoption decree

Legal adoption: Once a court enters a final adoption decree, the adopted child becomes the legal child of the adoptive parents with the same inheritance rights as a biological child.

The decree severs the legal relationship with the biological parents in most jurisdictions.
The child loses the right to inherit from or through the biological parents (except in stepparent adoptions—see below).
Exception: If the adoption decree explicitly reserves inheritance rights from the biological parents, some states (Alaska, Idaho, Illinois, Maine, Texas) honor that reservation.
Example: In Aldridge v. Mims, a child adopted by maternal grandparents (without the biological father's consent) could not inherit from the biological father's estate because the adoption terminated that legal relationship.

🔒 Adoption severs biological ties—even without biological parent's consent

In Aldridge, the biological father was violent and never consented to the adoption, yet the court held the adoption was valid and final.
The child's attempt to establish paternity and inherit from the biological father's estate was barred.
Policy: Adoption statutes impose permanence on the adoptive relationship; after one year (in New Mexico), the decree cannot be challenged "upon any ground, including fraud, misrepresentation or failure to give any required notice."

📊 Inheriting from vs. through adoptive parents

Scenario	Can inherit from adoptive parent?	Can inherit through adoptive parent (from kin)?
Legal adoption (minor)	✅ Yes	✅ Yes (in most states)
Legal adoption (adult)	✅ Yes	⚠️ Depends on statute (see below)
Equitable adoption	✅ Yes	❌ No (only from adoptive parent)
Stepparent adoption	✅ Yes	✅ Yes (from both adoptive and natural parent)

⚖️ Equitable adoption: When informal arrangements are enforced

⚖️ What is equitable adoption?

Equitable adoption (also called "virtual adoption" or "adoption by estoppel"): A court uses equity to treat a child as adopted when the adoptive parents failed to complete statutory adoption but the child performed as if adopted.

Not a legal adoption: No parent-child status is created; the doctrine applies only for limited purposes (inheritance from the adoptive parent).
Basis: Contract theory (specific performance of a promise to adopt) or estoppel (preventing the estate from denying the adoption after the child relied on it).

🧩 Five elements to prove equitable adoption

Agreement to adopt between biological parents (or guardian) and intended adoptive parents.
Performance by biological parents: giving up custody of the child.
Performance by the child: living in the adoptive home.
Partial performance by adoptive parents: taking the child into their home and treating the child as their own.
Intestacy of the adoptive parent (the adoptive parent died without a will).

Standard of proof: Clear, cogent, and convincing evidence (Wheeling Dollar Savings & Trust Co. v. Singer).
Example: In Welch v. Wilson, a child taken in by her step-grandfather at six months old, raised by him for 15 years, and cared for him in his final illness was equitably adopted and entitled to inherit from his estate.

🚫 Limits of equitable adoption

The child can inherit from the adoptive parent but not through the adoptive parent (not from the adoptive parent's siblings or other kin).
In Board of Education v. Browning, the court held that even an equitably adopted child could not inherit from the adoptive parent's sister, because the doctrine does not create a legal parent-child relationship binding on third parties.
Policy: Equitable adoption protects the child's reliance on the adoptive relationship, but does not extend to collateral relatives who were not parties to the adoption contract.

🛑 When equitable adoption fails

In O'Neal v. Wilkes, the child's paternal aunt (who had physical custody) lacked legal authority to consent to adoption; the court held no valid contract existed, so no equitable adoption.
Dissent (Sears-Collins, J.): Equity should protect the child who fully performed over a lifetime, regardless of whether the consenting party had formal legal authority—especially when the only alternative is escheat to the state.

🤔 Don't confuse: Equitable adoption vs. adoption by estoppel

Equitable adoption = judicial remedy to enforce a contract to adopt (specific performance).
Adoption by estoppel = preventing the estate from denying the adoption after the adoptive parents' conduct induced the child's reliance.
In practice, courts often use the terms interchangeably and apply the same analysis.

🔄 Can an equitably adopted child inherit from biological parents?

Yes, in most jurisdictions.
In Gardner v. Hancock, the court held that equitable adoption does not change the child's legal status, so the child remains an heir of the biological parents.
Rationale: Equitable adoption is a remedy against the adoptive parent's estate, not a legal adoption that severs biological ties.

👨‍👩‍👧 Adult adoption: Inheritance rights and limits

👨‍👩‍👧 Statutory authority for adult adoption

Many states permit the adoption of adults (e.g., Colorado, Illinois, Rhode Island, Texas).
Purpose: Originally to create inheritance rights; later used by same-sex couples (before marriage equality) to formalize relationships.
Example: In In re Petition of P.A.L., a 60-year-old man sought to adopt his 55-year-old sister so she could change her name to the family name (recognized in Germany only via adoption decree).

📜 Mandatory vs. discretionary approval

Colorado (P.A.L.): Statute uses "shall"—if the adult consents and service is valid, the court must grant the adoption.
No requirement for age differential or prohibition on adopting a sibling.
Contrast: Some states allow courts to deny adult adoptions that violate public policy (e.g., adopting a sexual partner to create an incestuous parent-child relationship).

🔍 Inheriting from adoptive parents (adult adoptees)

General rule: An adult adoptee is the "child" of the adoptive parent and can inherit from the adoptive parent's estate.
In In re Estate of Brittin, the court held that the statutory term "adopted child" includes adults adopted under the adult adoption statute.
Rationale: The word "child" refers to the parent-child relationship, not the adoptee's age at adoption.

⚠️ Inheriting through adoptive parents (from kin)

Majority rule (pre-1995 in Texas): Adult adoptees could inherit from adoptive parents but not through them (the "stranger to the adoption" rule applied).
In In re Ellison Grandchildren Trust, the court held that in 1982, when the trust was created, Texas law did not allow adult adoptees to inherit from the adoptive parent's siblings.
Key distinction: The 1975 Texas statute said an adopted adult is the child of the adoptive parent "for all purposes," but the court interpreted this as not abrogating the stranger-to-adoption rule (citing Cutrer v. Cutrer).
1995 amendment: Texas explicitly allowed adult adoptees to inherit "from and through" adoptive parents.

📊 Evolution of Texas adoption law (example from Ellison)

Year	Statute	Effect on adult adoptees
1931	"Child" = descendant of adoptive parent	Stranger rule: inherit from, not through
1947	Adult adoption authorized	Stranger rule still applied
1951	Minor adoptees can inherit "from and through"	Stranger rule abrogated for minors only
1975	Adult adoptee is child "for all purposes"	Stranger rule still applied (per Ellison)
1995	Adult adoptee inherits "from and through"	Stranger rule abrogated for adults

🤔 Don't confuse: "For all purposes" vs. "from and through"

"For all purposes" (1975) = adult adoptee is the child of the adoptive parent in all respects (e.g., support, custody).
"From and through" (1995) = adult adoptee can inherit not only from the adoptive parent but also from the adoptive parent's relatives (e.g., siblings, parents).
The Ellison majority held that "for all purposes" did not include inheritance through the adoptive parent absent explicit statutory language.

🗳️ Dissent in Ellison

Justice Simmons argued that Lehman v. Corpus Christi Nat'l Bank (1984) had already held that the stranger-to-adoption rule was abrogated in 1975.
The dissent warned that the majority's holding undermines 25 years of reliance on Lehman and creates unintended consequences for estate planning.

👔 Stepparent adoption: Preserving dual inheritance

👔 Special rule for stepparent adoptions

Stepparent adoption: When a stepparent adopts the child of their spouse, the adoption does not sever the child's legal relationship with either natural parent.

UPC § 2-114(b): "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 other natural parent."
Policy: Encourages blended families by allowing the child to maintain ties with both biological parents while gaining a legal relationship with the stepparent.

🔗 Inheriting from both natural parents

In Estate of Jacobs, a child adopted by his mother's husband (stepfather) retained the right to inherit from his natural father (who consented to the adoption).
Maine statute: "Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent."
The court held that "either natural parent" means both the custodial parent (married to the stepparent) and the noncustodial parent (who consented to the adoption).

🚫 Cannot inherit through the noncustodial natural parent

In In re Estate of McQuesten, children adopted by their stepfather (after their parents' divorce) could not inherit from their natural paternal grandmother.
New Hampshire rule: Stepparent adoption preserves inheritance rights between the child and "his natural parent" (singular) = the parent married to the stepparent, not the parent whose rights were terminated.
Rationale: It would be illogical to preserve inheritance rights with a parent who has been "legally dispossessed of any continuing parental rights or duties."

📊 Stepparent adoption: Inheritance matrix

Relationship	Can child inherit?
From natural parent married to stepparent	✅ Yes
From stepparent	✅ Yes
From natural parent whose rights were terminated	⚠️ Depends on state (Maine: yes; New Hampshire: no)
Through natural parent whose rights were terminated (from that parent's kin)	❌ No (per McQuesten)

🤔 Don't confuse: Open vs. closed stepparent adoption

Open adoption (with natural parent's consent) does not automatically preserve inheritance rights through that parent.
In McQuesten, the court rejected the argument that an "open" adoption should allow dual inheritance, citing the policy against giving adopted children a "dual right of inheritance" that non-adopted children lack.

🧮 Inheriting two shares: The "related adoption" problem

🧮 When an adoptee is related to the adoptive parent

UPC § 2-113: "An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share."
Example: A child adopted by his maternal grandparents is related to the decedent (his mother's sister) both as an adopted sibling of the mother and as a biological nephew.

⚖️ Majority rule: Adoptee takes two shares

In Jenkins v. Jenkins, the court held that an adopted child who is also the biological grandchild of the adoptive parents is entitled to two shares of the estate.
Facts: DeMarcus was adopted by his maternal grandparents after his mother (their daughter) died. When his aunt Janice died intestate, DeMarcus claimed two shares: one as Janice's adopted brother, one as the son of Janice's deceased sister (by representation).
Holding: Mississippi law allows an adopted child to inherit from both natural and adoptive parents; the adoption statute does not terminate the child's right to inherit from natural parents.
Rationale: The adoption decree did not limit DeMarcus's right to inherit from his natural mother, so he retains both lines of inheritance.

🤔 Don't confuse: Two shares vs. double inheritance

Two shares = the adoptee takes two separate fractional interests (e.g., 1/9 as adopted sibling + 1/9 as representative of deceased sibling).
Double inheritance = the adoptee inherits from both adoptive and natural parents (allowed in some states, e.g., Texas).
The Jenkins court emphasized that the adoption statute was designed to protect the child, not to penalize other heirs.

🛑 How to avoid the two-share result

The adoption decree can limit the adopted child's right to inherit from adoptive kindred.
Mississippi statute: The final decree "shall adjudicate" inheritance rights "unless otherwise specifically provided."
If the adoptive parents want to prevent dual inheritance, they must address it in the adoption decree.

📝 Notes and policy considerations

📝 Why sever biological ties in adoption?

Privacy: Historically, adoption records were sealed to protect the privacy of adoptive and biological parents and to help the child integrate into the new family.
Finality: Adoption statutes impose permanence to avoid disrupting the adoptive family.
Critique: Prevents the child from inheriting from biological grandparents and other kin, even though those relatives were not parties to the adoption.

📝 Why recognize equitable adoption?

Reliance: The child performed duties as if adopted (e.g., providing care, companionship) and should not be penalized because the adoptive parents failed to formalize the adoption.
Unjust enrichment: The adoptive parents received the benefits of the parent-child relationship; their estate should not escape the obligations.
Critique: Equitable adoption is based on contract law, but the child (often an infant) could not have understood or consented to the "contract."

📝 Why allow adult adoption?

Inheritance planning: Allows individuals to designate an heir when no biological children exist.
Name change: In some countries (e.g., Germany), adoption is the only way to change an adult's surname.
Same-sex couples: Before marriage equality, adoption was used to formalize relationships and grant inheritance/medical decision-making rights.
Critique: Adult adoption can be used to manipulate inheritance (e.g., adopting a lover to disinherit other heirs), and the adoptee may have no genuine parent-child relationship with the adoptor.

📝 Why preserve dual inheritance in stepparent adoptions?

Blended families: High divorce and remarriage rates mean many children have relationships with both a stepparent and a noncustodial biological parent.
Best interests of the child: Preserving ties with both parents promotes stability and support.
Critique: Creates a "dual right of inheritance" that non-adopted children lack, which some courts view as unfair (McQuesten).

Intestacy: Non-Marital Children, Stepchildren, and Foster Children

Chapter Five: Intestacy (Non-Marital Children, Stepchildren and Foster Children)

🧭 Overview

🧠 One-sentence thesis

State intestacy statutes have evolved to grant non-marital children, stepchildren, and foster children limited inheritance rights from their parents, but these "outsider" children still face significant procedural and evidentiary burdens that marital children do not encounter.

📌 Key points (3–5)

Historical discrimination: Non-marital children were historically called "bastards" and had no legal rights to inherit or receive support from their fathers, though this has changed through litigation and statutory reform.
Maternal vs. paternal inheritance: Non-marital children can generally inherit from their mothers without difficulty, but inheriting from fathers requires proof of paternity through specific statutory procedures (e.g., court orders, acknowledgments, DNA evidence).
Stepchildren and foster children exclusion: In most jurisdictions, stepchildren and foster children cannot inherit from stepparents or foster parents unless they were formally adopted or meet very narrow statutory exceptions.
Common confusion—relationship vs. legal status: A close, loving parent-child relationship alone is insufficient; the law requires formal legal steps (adjudication, acknowledgment, adoption) to establish inheritance rights.
Balancing interests: States must balance the non-marital/step/foster child's interest in inheritance, the marital children's interest in limiting claimants, and the state's interest in orderly estate administration and preventing fraudulent claims.

📜 Historical context and policy foundations

📜 The "bastard" legacy

Historically, children born outside marriage were called "bastards" and treated as "children of no one."
They had no right to child support or inheritance, even if their father was wealthy.
If an unmarried mother died in childbirth, the child could be forced into an orphanage or onto the streets, regardless of the father's resources.
This harsh treatment was justified by the view that non-marital children were "products of sin."

🔄 Social change and legal reform

As more people openly had children without marriage, society recognized the need to protect these children from disadvantage due to their birth circumstances.
After years of litigation, the stigma of illegitimacy was gradually removed.
All fifty states and the District of Columbia now have intestacy statutes giving non-marital children some opportunity to inherit from their parents.
The nature of litigation has shifted from whether non-marital children can inherit at all to what steps are necessary to establish that right.

⚖️ Competing interests

States must balance three important interests:

State's interest: Orderly disposition of property and dependability of titles; preventing fraudulent claims and protracted litigation.
Non-marital child's interest: Acquiring the chance to inherit from biological parents, especially fathers.
Marital children's interest: Reducing the number of persons claiming an interest in the estate.

👩‍👧 Non-marital children: Inheriting from mothers

👩‍👧 The maternal relationship

The right to inherit from one's mother is generally straightforward for non-marital children because maternity is rarely difficult to prove.

The old adage: "mama's baby, papa's maybe" reflects the relative ease of establishing maternity.
Birth is typically a recorded event in the presence of others, and the child usually remains with and is reared by the mother.

⚖️ Levy v. Louisiana (1968)

Facts: Five non-marital children sued for wrongful death damages after their mother died. Louisiana law denied them recovery because they were "illegitimate."

Holding: The U.S. Supreme Court ruled that excluding non-marital children from wrongful death recovery violated the Equal Protection Clause.

Key reasoning:

Non-marital children are "persons" within the meaning of the Equal Protection Clause.
The children were dependent on their mother; she cared for and nurtured them.
It is "invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant to the harm that was done the mother."
The children are subject to all responsibilities of citizenship (taxes, conscription), so they should enjoy correlative rights.

Don't confuse: This was a tort case, not an inheritance case, but the principles established paved the way for recognizing non-marital children's inheritance rights from their mothers.

📋 Sample statute: Ohio Revised Code § 2105.17

"Children born out of wedlock shall be capable of inheriting or transmitting inheritance from and to their mother, and from and to those from whom she may inherit, or to whom she may transmit inheritance, as if born in lawful wedlock."

Most state legislatures made it clear that non-marital children have the right to inherit from their mothers.
There are generally no additional procedural requirements beyond proof of the biological mother-child relationship.

👨‍👦 Non-marital children: Inheriting from fathers

👨‍👦 The paternal challenge

Establishing paternity is often difficult when the father is not part of a formal family unit.
The putative father may be unaware of the birth, unconcerned, or the mother may not know who is responsible for the pregnancy.
States impose additional requirements on non-marital children seeking to inherit from fathers to address proof problems and prevent fraudulent claims.

⚖️ Lalli v. Lalli (1978)

Facts: Robert Lalli claimed to be the non-marital son of Mario Lalli, who died intestate. New York law required an order of filiation during the father's lifetime for a non-marital child to inherit. Robert had not obtained such an order, though he had evidence of his relationship with Mario (notarized consent to marriage, affidavits).

Holding: The U.S. Supreme Court upheld New York's statute requiring a judicial order of filiation during the father's lifetime.

Key reasoning:

The statute is "substantially related" to important state interests: orderly disposition of property and protection against fraudulent claims.
Accuracy is enhanced by placing paternity disputes in a judicial forum during the father's lifetime, when he can defend himself.
Estate administration is facilitated when entitlement is a matter of judicial record before administration commences.
Unlike the Illinois statute struck down in Trimble, New York's law does not require legitimation through parental marriage—only judicial proof of paternity.

Distinguishing Trimble v. Gordon:

Trimble struck down an Illinois statute that required both acknowledgment and legitimation through parental marriage.
That statute was too broad and excluded children even when paternity was judicially established.
New York's statute is narrower: it requires only a judicial declaration of paternity during the father's lifetime, regardless of marital status.

🧬 Methods of proving paternity

States vary in what evidence they accept to establish the father-child relationship:

Method	Description	Jurisdictions
Court order of filiation	Judicial determination of paternity during father's lifetime	Most states (e.g., New York, North Carolina)
Paternity affidavit	Written acknowledgment executed before a certifying officer and filed	Many states (e.g., Indiana)
Father's name on birth certificate	Father signed the birth certificate	Few states (Arkansas, Georgia)
Sworn statement	Father executed a sworn statement attesting to the relationship	Some states (e.g., Georgia)
DNA testing	Genetic testing establishing paternity by clear and convincing evidence	Increasingly accepted (e.g., Georgia allows 97% probability)
Open acknowledgment	Father openly and notoriously acknowledged the child as his own	Some states (e.g., New York, when combined with other evidence)

⚠️ Phillips v. Ledford (2004)

Facts: Gwendolyn Phillips was the biological daughter of Benjamin Owenby, established by DNA testing to 99% certainty. Owenby acknowledged her publicly and they had a close relationship. However, Owenby never legitimated her and was never adjudicated to be her father during his lifetime. North Carolina law required either adjudication or written acknowledgment filed with the court.

Holding: The trial court properly dismissed Phillips's claim because she did not meet the statutory requirements, even though DNA evidence proved paternity.

Key reasoning:

"A positive DNA test is not enumerated in the statute as a method of meeting the requirements to legitimate a child."
"The statute mandates what at times may create a harsh result. It is not, however, for the courts but rather the legislature to effect any change."
The court declined to address whether the statute violated constitutional equal protection or due process rights because the case could be resolved on statutory grounds.

Don't confuse: Having a close relationship and DNA proof of paternity is not enough; strict compliance with the statutory procedure is required.

📚 The information gap problem

Many non-marital children lose inheritance rights due to parental ignorance of legal requirements:

Low-income women may believe that having the father's name on the birth certificate is sufficient (it is only sufficient in Arkansas and Georgia).
Women in common law marriage states may believe that living together for a long time creates a marriage automatically (it does not without taking specific legal steps).
Parents may not understand that they must file paternity actions or acknowledgments during the father's lifetime.

Proposed solutions:

Public service announcements on local television and radio.
Pamphlets distributed through organizations serving low-income women.
Checklists of requirements for non-marital children to inherit.

📋 Uniform Parentage Act § 202

"A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other."

UPA approach:

Approximately twenty states have adopted language modeled after the UPA.
A father-child relationship is presumed if:
1. Before the child reaches age two, the father and child live in the same household and the father openly holds the child out as his natural child; OR
2. The father files a written acknowledgment of paternity with an appropriate court or administrative agency.
If neither requirement is met, the non-marital child has the burden of proving paternity.

Critique: The UPA provides equal opportunity but not true equality—marital children need take no action for the presumption to arise, while non-marital children depend on their father's affirmative action.

📋 Sample state statutes

Indiana Code § 29-1-2-7:

Non-marital child inherits from mother as if parents were married.
Inherits from father if:
1. Paternity established by law during father's lifetime (or within 5 months after death if child under 20; within 11 months if child born after death);
2. Father married mother and acknowledged child;
3. Father executed paternity affidavit;
4. Mother's testimony supported by corroborative evidence.

Georgia Code § 53-2-3:

Inherits from mother as if legitimate.
Inherits from father if:
1. Court order declaring child legitimate;
2. Court order establishing paternity;
3. Father's sworn statement;
4. Father signed birth certificate; OR
5. Other clear and convincing evidence.
Rebuttable presumption of paternity if DNA testing establishes at least 97% probability.

New York EPTL § 4-1.2:

Inherits from mother as legitimate child.
Inherits from father if:
1. Court order of filiation during father's lifetime OR acknowledgment of paternity filed with registrar;
2. Father signed instrument acknowledging paternity, properly acknowledged and filed within 60 days;
3. Paternity established by clear and convincing evidence and father openly and notoriously acknowledged child; OR
4. Blood genetic marker test plus other evidence establishes paternity by clear and convincing evidence.

👨‍👧‍👦 Inheriting through fathers

👨‍👧‍👦 The "through" distinction

Inheriting "from" a father means taking directly from his estate.
Inheriting "through" a father means taking from the father's relatives (e.g., paternal grandparents, aunts, uncles).

⚖️ In re Dumaine (1991)

Facts: Elizabeth Ann Charney was born to Evelyn Humphreys and Pierre Dumaine (who was married to another woman at the time). Charney was immediately placed for adoption. Six years later, Pierre divorced his wife and married Evelyn. Charney was reunited with her biological parents as an adult. Pierre's father had created trusts for "legitimate" children and their "legitimate issue." Charney claimed she was legitimized by her parents' subsequent marriage and recognition.

Holding: Charney was not a beneficiary of the trusts because she was not "lawfully begotten, born in wedlock."

Key reasoning:

The term "legitimate" as used in the trusts means "lawfully begotten: born in wedlock."
A child whose parents were unwed at the time of birth is not "legitimate" under the term's common meaning, regardless of subsequent adoption or parental marriage.
New Hampshire RSA 457:42 (allowing children to inherit if parents subsequently marry and recognize them) applies only to intestate succession, not private trust documents.
The court's interpretation of a private trust does not constitute "state action" subject to equal protection challenges.
Charney had no property right to take under the trusts, so there was no due process violation.

Don't confuse: This case involves a private trust, not intestacy. The settlor's intent controls, and he clearly intended to benefit only children born in wedlock. The result might differ under intestacy statutes.

🔍 Policy considerations

Courts are less inclined to require that non-marital children inherit "through" their fathers when doing so would frustrate a testator's intent.
Every time the state expands the definition of "child" for inheritance purposes, it decreases the inheritance rights of marital children.
The state must balance the non-marital child's interest in inheritance against the testator's freedom to dispose of property as desired.

👨‍👧 Stepchildren and foster children

👨‍👧 General rule: No inheritance right

In the majority of jurisdictions, stepchildren and foster children are not entitled to inherit from stepparents and foster parents.

Wyoming Statute § 2-4-104:

"Persons of the half-blood inherit the same share they would inherit if they were of the whole blood, but stepchildren and foster children and their descendants do not inherit."

Exception: If the decedent is not survived by any other heirs related by blood or adoption, stepchildren and/or foster children may be allowed to inherit to avoid escheat to the state.

Maryland Estates and Trusts § 3-104(e):

"If there is no surviving blood relative entitled to inherit under this section, it shall be divided into as many equal shares as there are stepchildren of the decedent who survive the decedent and stepchildren of the decedent who did not survive the decedent but of whom issue did survive the decedent."

🏠 Changing family structures

Stepchildren are becoming totally integrated into families.
Foster children are remaining in the same home for longer periods.
These changes have enabled stepparents/foster parents to bond with stepchildren/foster children.
Some jurisdictions now give stepchildren and foster children limited opportunities to inherit.

📋 California Probate Code § 6454

"For the purpose of determining intestate succession by a person or the person's issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied: (a) The relationship began during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent. (b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier."

Two requirements:

Continuing relationship: The relationship must have begun during minority and continued until death.
Legal barrier: Clear and convincing evidence that the stepparent/foster parent would have adopted the child but for a legal barrier.

⚖️ Estate of Claffey (1989)

Facts: Thomas and Janet McKenzie were children of John McKenzie. After John divorced their mother, he married Bessie Stokes. The children did not live with John and Bessie. After John's death, Bessie died intestate. Thomas and Janet claimed they were Bessie's stepchildren and entitled to inherit.

Holding: Thomas and Janet could not inherit because they did not establish a "family relationship" with Bessie.

Key reasoning:

The statute requires more than a mere stepchild/stepparent relationship arising from marriage.
The "relationship" must be a "family relationship" like that of parent and child.
The Law Revision Commission intended to provide for stepchildren "in very limited situations, with the necessary safeguards incorporated by treating the case like an adoption."
A foster parent is "one who... assumes the role of parent"—essentially a "de facto" parent.
The Legislature would not require less familial involvement by a stepparent than by a foster parent.
The jury found no family relationship existed, and that finding was supported by the evidence (the children lived with their mother, not with their father and Bessie).

Don't confuse: The statute does not make every stepchild an heir automatically upon the stepparent's marriage. It requires proof of a parent-child-like family relationship.

⚖️ Estate of Smith (1956)

Facts: Ernest E. Smith died testate, leaving $1 to each of his "children" (including four stepchildren) and the residue to his wife Jessie. Jessie predeceased Ernest, so the residuary clause lapsed. The stepchildren claimed they should inherit the residue as heirs-at-law.

Holding: Stepchildren cannot inherit as heirs-at-law under Washington's intestacy statute.

Key reasoning:

At common law, the stepparent-stepchild relationship conferred no rights and imposed no duties.
Washington's statute provides for inheritance from a stepparent only to avoid escheat (RCW 11.08.010).
The statute's reference to "kindred of the half blood" means blood relations, not relations by affinity.
"There is a fundamental distinction between persons who are of the half blood and those without inheritable blood at all."
Stepchildren are not "children" under the statute; they are related by affinity, not blood.

Don't confuse: Being named in a will as a "child" does not make one an heir under intestacy statutes. The will's residuary clause lapsed, so intestacy law controls.

⚖️ Estate of Joseph (1998)

Facts: Kim Barnum-Smith was taken in by Louis Joseph and his wife at age three and raised by them. They assisted her financially through college and Louis "gave her away" at her wedding. During her minority, they asked her natural parents for permission to adopt her, but were refused. They stopped asking while she was still a minor. Louis died intestate. Kim claimed she was his foster daughter under California Probate Code § 6454.

Holding: Kim could not inherit because the legal barrier to adoption did not continue throughout their joint lifetimes.

Key reasoning:

Section 6454's "legal barrier" requirement means the barrier must have continued until death.
If a legal barrier existed only at a time when adoption was contemplated or attempted (perhaps decades before death), it was not the necessary cause of the failure to adopt at other times.
The statute requires both a continuing legal barrier and a continuing intent to adopt.
The statute is designed to apply only in exceptional circumstances.
Had Louis made a will, he likely would not have desired to leave property to Kim if the legal barrier existed only briefly in the distant past, because the relationship could have changed in nature or quality over the intervening years.
Louis could have pursued an adult adoption or written a will leaving property to Kim, but he did not.

Distinguishing Estate of Stevenson:

The Sixth District in Stevenson held that the legal barrier need only exist when adoption was contemplated or attempted.
The Joseph court rejected Stevenson and followed Estate of Cleveland, which held that the barrier must continue until death.

Three reasons Stevenson was wrong:

Whether adoption is "important" has no bearing on what the statute requires; moreover, adoption implicates many legal issues (estate tax, insurance, wrongful death, custody).
Legal barriers to adult adoption do exist (e.g., failure to consent by spouse, limitation of one adult adoption per year, requirement that adoption be in the best interests of the parties).
The "continuing relationship" requirement does not suggest the "legal barrier" requirement should not also be continuing.

Don't confuse: A close, loving relationship throughout life is not enough. The statute requires both a continuing relationship and a continuing legal barrier to adoption, plus clear and convincing evidence that the stepparent/foster parent would have adopted but for that barrier.

🔍 Policy considerations for stepchildren and foster children

The intestacy system aims to carry out the presumed intent of the decedent.
Excluding stepchildren and foster children may reflect a belief that stepparent-stepchild relationships are usually contentious (the "Cinderella" stereotype).
Historically, foster children did not stay in the same home long enough to develop strong relationships.
Modern blended families and longer-term foster placements challenge these assumptions.
States must balance the interests of biological/adopted children against the interests of stepchildren/foster children.
Allowing inheritance only in exceptional circumstances (continuing relationship + legal barrier) protects against fraudulent claims while recognizing genuine parent-child relationships.

Chapter Six: Intestacy (Children of Assisted Reproductive Technology)

🧭 Overview

🧠 One-sentence thesis

Assisted reproductive technology has created complex legal questions about inheritance rights for children conceived through artificial insemination, posthumous reproduction, and surrogacy arrangements, requiring courts to balance the interests of children, deceased parents, existing heirs, and the integrity of the probate system in the absence of comprehensive legislation.

📌 Key points (3–5)

Core challenge: Modern reproductive technology allows children to be conceived after a parent's death or through surrogacy, creating uncertainty about who qualifies as a legal parent for inheritance purposes.
Posthumously conceived children: Courts must determine whether children conceived after a father's death can inherit from his estate, weighing factors like written consent, timing limitations, and the deceased's intent.
Artificial insemination: A husband's consent (written, verbal, or implied) to his wife's artificial insemination typically establishes him as the legal father, while sperm donors generally have no parental rights unless they actively participate in the child's life.
Surrogacy disputes: Courts use different tests (genetics, gestation, intent, best interests, or totality of circumstances) to determine which woman—the genetic mother or gestational surrogate—is the legal mother for inheritance purposes.
Common confusion: The distinction between "biological parent" (genetic connection) and "legal parent" (recognized by law) is critical; a person can be one without being the other, and inheritance rights flow only from legal parentage.

🧬 Posthumously Conceived Children

🧬 The core inheritance dilemma

When a child is conceived using a deceased person's preserved sperm or eggs, a fundamental question arises: can that child inherit from the deceased parent's estate?

Traditional rule: Heirs are determined at the moment of death. A person must be "in being" (alive or at least conceived) when the decedent dies to inherit.

Modern problem: Reproductive technology allows conception years after death, creating children who were neither alive nor conceived at the time of the parent's death.

Example: A man dies in 2010. His widow uses his frozen sperm in 2012 to conceive a child born in 2013. Under traditional rules, this child would not inherit because the child was not "in being" in 2010.

⚖️ Competing interests at stake

Courts must balance four major interests:

Interest	Concern
Deceased's reproductive rights	Did the deceased consent to posthumous reproduction and to supporting resulting children?
Child's financial interests	The child needs support and should not be disadvantaged by circumstances beyond their control
Existing heirs' interests	Other children or relatives expect timely distribution of the estate
Probate system integrity	Estates need finality; they cannot remain open indefinitely waiting for potential children

📝 The consent requirement

Most courts require clear evidence that the deceased parent consented to both:

Posthumous reproduction (using their genetic material after death)
Supporting any resulting child

Why two-fold consent matters: A person might preserve sperm/eggs for use during their lifetime (e.g., after cancer treatment) without intending to create children after death. Consent to preservation ≠ consent to posthumous parenthood.

Forms of consent:

Written consent (most protective and clear)
Conduct demonstrating intent (e.g., signing donor agreements, discussing plans with spouse)
Explicit provisions in a will

Don't confuse: Consent to the medical procedure of preserving genetic material is not the same as consent to posthumous reproduction. The deceased must specifically contemplate and approve creating children after death.

⏰ Time limitations

Even with consent, many jurisdictions impose time limits:

Rationale: Estates cannot remain open indefinitely. Other heirs need certainty. The longer the delay, the more attenuated the connection to the deceased parent's life and estate.

Common approaches:

Louisiana: Child must be born within 3 years of death
California: Child must be in utero within 2 years of death
Virginia: Implantation must occur within 10 months of death (unless deceased consented in writing to longer period)

Example: Father dies January 1, 2020. Under California law, if mother conceives using his sperm on February 1, 2022 (13 months after death), the child born in November 2022 could inherit. But if conception occurs March 1, 2022 (26 months after death), the child cannot inherit—even with father's written consent—because conception occurred beyond the 2-year window.

🏛️ Social Security benefits context

Many posthumous conception cases arise not from probate disputes but from applications for Social Security survivor benefits.

The connection: Federal law ties Social Security eligibility to state inheritance law. If a child can inherit under state intestacy law, the child qualifies for federal benefits.

Why this matters: Even if the deceased parent left no estate, establishing inheritance rights under state law opens the door to federal benefits that can provide substantial support for the child.

💉 Children Conceived Through Artificial Insemination

💉 Establishing the husband's paternity

When a married woman conceives through artificial insemination using donor sperm, the central question is: who is the legal father—the husband or the sperm donor?

General rule: The husband is the legal father if he consented to the procedure. The sperm donor is not the legal father.

Policy rationale:

Protects the marital family unit
Prevents sperm donors from being burdened with unwanted parental obligations
Ensures children have identifiable, responsible parents
Honors the intent of the parties who planned to raise the child

✍️ Written consent

Most statutes require the husband's written consent to establish his paternity.

Typical statutory language: "If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing."

What satisfies written consent:

Formal consent forms signed at fertility clinic
Contracts between spouses agreeing to the procedure
Verified pleadings in court acknowledging the child as "child of the marriage"
Stipulations signed by attorneys representing both spouses

Substantial compliance doctrine: Some courts accept writings that don't perfectly match statutory requirements if they clearly show:

Husband knew of the artificial insemination
Husband agreed to be treated as the legal father
Wife agreed husband would be treated as the legal father

Example: In Lane v. Lane, the husband and wife signed no formal consent form, but later filed verified divorce pleadings stating the child was a "child of the marriage" and signed a stipulation agreeing they were "the parents" of the child. The court found this satisfied the written consent requirement through substantial compliance.

Don't confuse: The physician's failure to file or certify the consent form (as required by some statutes) does not affect the father-child relationship. The consent itself matters, not the procedural filing requirements.

🗣️ Verbal and implied consent

Even without written consent, courts may find the husband is the legal father based on his conduct.

Verbal consent: If the husband explicitly tells his wife or medical providers that he consents to the procedure, courts may recognize paternity even without a writing.

Implied consent: Courts infer consent from the husband's actions:

Attending medical appointments with wife
Participating in donor selection
Paying for the procedure
Being present at the child's birth
Holding the child out as his own after birth
Allowing his name on the birth certificate

Presumption of consent: Some jurisdictions presume the husband consented if he knew about the procedure and failed to object. The burden shifts to the husband to prove he did not consent.

Example: In K.S. v. G.S., the husband attended the initial consultation, knew his wife was undergoing artificial insemination, helped with fertility tracking, and was present at the child's birth. Even without written consent, the court found he had impliedly consented through his conduct.

🚫 Withdrawal of consent

Can a husband who initially consents later withdraw that consent?

Majority rule: Consent, once given, continues until pregnancy is achieved. Withdrawal must occur before conception to be effective.

Rationale:

Protects the child's interests
Prevents men from avoiding responsibility after encouraging their wives to undergo the procedure
Recognizes that pregnancy and birth create reliance interests

What constitutes effective withdrawal:

Clear communication to the wife before conception
Refusal to participate in further procedures
Separation or divorce before conception (possibly)

Don't confuse: Changing one's mind after the child is born is not withdrawal of consent. The critical moment is conception, not birth.

Example: Husband initially consents and wife undergoes several unsuccessful insemination attempts. Husband then tells wife he no longer wants a child. If wife continues treatments and conceives after this communication, some courts would find no valid consent. But if wife was already pregnant when husband withdrew consent, the withdrawal is ineffective.

🧪 Sperm donor's lack of parental rights

The general rule is that sperm donors have no parental rights or obligations.

Statutory protection: Most states provide that a sperm donor is not the legal father if:

Donation occurs through a licensed physician or fertility clinic
The woman is married and her husband consents
The donor does not act as a parent to the child

Policy rationale:

Encourages sperm donation by protecting donors from unwanted obligations
Prevents disruption of the intended family unit
Honors the parties' intent

Exception—known donors with parental involvement: If a sperm donor is known to the mother and actively participates in the child's life as a parent, courts may apply equitable estoppel to establish paternity and support obligations.

Example: In Shultz v. Shultz, a man donated sperm to help his sister-in-law and her partner have a child. He was present at the birth, visited regularly, provided financial support, and was called "Papa" by the children. The court held he could be joined as a party obligated to pay child support because he functioned as a parent, despite being a sperm donor.

Don't confuse: Anonymous sperm donors who have no contact with the child are treated differently from known donors who develop parental relationships. The distinction turns on conduct, not just the initial donation.

🤰 Children Born Through Surrogacy

🤰 The maternity question

Surrogacy creates a unique problem: when one woman provides the egg and another woman carries and gives birth to the child, who is the legal mother?

Two types of surrogacy:

Type	Description	Genetic connection
Traditional surrogacy	Surrogate's own egg is inseminated with intended father's sperm	Surrogate is genetic mother
Gestational surrogacy	Embryo created from intended mother's egg (or donor egg) is implanted in surrogate	Surrogate has no genetic connection

Why this matters for inheritance: Only the legal mother's estate passes to the child through intestacy. If the surrogate is the legal mother, the child inherits from her, not from the intended mother. If the intended mother is the legal mother, the child inherits from her.

🧬 The genetics test

Some courts hold that the woman who provides the genetic material (the egg) is the legal mother.

Rationale:

Genetics have historically been the basis for determining parentage
Blood relationship is the traditional foundation of inheritance rights
The genetic mother makes an irreplaceable contribution to the child's identity

Application: In Belsito v. Clark, a married couple used the wife's egg and husband's sperm to create embryos implanted in the wife's sister (gestational surrogate). The court held the genetic parents (the married couple) were the legal parents because they provided the child's genetic makeup.

Advantages:

Clear and objective (genetic testing provides certainty)
Consistent with traditional inheritance law based on blood relationship
Protects the genetic parents' right to procreate

Disadvantages:

Devalues the gestational mother's contribution
May not reflect the parties' intent
Could leave children without a legal mother if genetic mother is anonymous or deceased

Don't confuse: Genetic connection alone is not always sufficient. Courts consider genetics as one factor, but may weigh it against other considerations like gestation and intent.

🤱 The gestation/birth test

Other courts hold that the woman who carries the pregnancy and gives birth is the legal mother.

Rationale:

Birth has historically established maternity (mater est quam gestatio demonstrat—"the mother is she whom gestation demonstrates")
The gestational mother makes unique physical and emotional contributions
Pregnancy creates a biological bond between mother and child
The gestational mother's body provides the environment that shapes the child's development

Application: In J.F. v. D.B., a gestational surrogate carried triplets created from the intended father's sperm and donor eggs. The court held the surrogate was the legal mother because she "carried and bore the children and took care of them as a natural parent would."

Advantages:

Recognizes the profound contribution of pregnancy and childbirth
Protects gestational mothers from being treated as mere "incubators"
Provides a clear, observable basis for maternity

Disadvantages:

May contradict the parties' intent
Could discourage surrogacy arrangements
Ignores genetic contribution
May not serve the child's best interests if surrogate has no ongoing relationship with child

🎯 The intent test

Some courts determine legal maternity based on who intended to bring the child into the world and raise the child as their own.

Rationale:

Intent is the critical factor that distinguishes surrogacy from other situations
The intended mother is the one who initiated the reproductive process
"But for" the intended mother's intent, the child would not exist
Intent best reflects the parties' expectations and agreements

Application: In Johnson v. Calvert, a married couple used the wife's egg and husband's sperm to create an embryo implanted in a gestational surrogate. When both the genetic mother and gestational mother claimed maternity, the California Supreme Court held: "she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother."

How intent is determined:

Surrogacy contracts and agreements
Conduct before conception (seeking medical assistance, selecting donors/surrogates)
Conduct during pregnancy (paying expenses, attending appointments)
Conduct after birth (taking custody, acting as parent)

Advantages:

Honors the parties' expectations
Provides flexibility to address various scenarios
Recognizes that modern reproduction involves planning and choice

Disadvantages:

Intent can be difficult to prove or may change
May not adequately protect children's interests
Could enable "private adoptions" that circumvent adoption safeguards
Raises concerns about commodification of children

Don't confuse: Intent at the time of conception is what matters, not later changes of heart. A surrogate who initially agreed to relinquish the child but later wants to keep the child does not become the legal mother under the intent test.

👶 The best interests of the child test

Some courts focus on which outcome best serves the child's welfare.

Rationale:

Children's interests should be paramount in any custody or parentage determination
The child's need for stability, continuity, and capable parents outweighs adults' competing claims
Courts should consider factors like ability to nurture, provide guidance, and ensure the child's wellbeing

Application: In the dissent in Johnson v. Calvert, Justice Kennard argued that rather than applying a rigid intent test, courts should determine maternity based on "the best interests of the child," considering factors like:

Ability to nurture the child physically and psychologically
Ability to provide ethical and intellectual guidance
The child's need for stability and continuity
The existing relationship between child and each claimant

Advantages:

Prioritizes the child's welfare over adults' interests
Allows consideration of all relevant circumstances
Flexible enough to address unique situations

Disadvantages:

Provides little predictability or certainty
Requires case-by-case litigation
May not be determinable until after birth when relationships have developed
Could undermine surrogacy agreements made in good faith

🔄 The totality of circumstances test

Some courts consider multiple factors together rather than applying a single test.

Factors considered:

Genetics: Who provided the egg?
Gestation: Who carried the pregnancy and gave birth?
Intent: Who intended to be the parent and raise the child?
Consent: Did all parties agree to the arrangement?
Conduct: Who has acted as the parent?
Nature of the dispute: Is this a conflict between genetic mother and gestational mother, or between a surrogate and intended parents?

Application: In In re C.K.G., an unmarried couple used donor eggs, the man's sperm, and the woman's womb to create triplets. The Tennessee Supreme Court held the gestational mother was the legal mother based on:

Both parties' pre-conception intent that she would be the mother
She carried the pregnancy and gave birth
This was not a dispute between a genetic mother and gestational mother (the egg donor was anonymous)

Advantages:

Considers all relevant circumstances
Avoids rigid rules that may not fit all cases
Balances competing interests
Can be tailored to specific fact patterns

Disadvantages:

Provides little predictability
Requires extensive litigation
Different courts may weigh factors differently
Parties cannot easily predict outcomes when making surrogacy arrangements

Don't confuse: The totality test is not simply "anything goes." Courts still require clear evidence of key factors like intent and consent, and they limit their holdings to the specific circumstances before them.

📊 Statutory Approaches to Assisted Reproduction

📊 Uniform Parentage Act (UPA)

The UPA provides model legislation that some states have adopted (with variations).

Key provisions:

A man who consents to assisted reproduction is the legal father
Consent must be in a record (writing)
A sperm donor is not a parent unless he consents in a record to be a parent
For posthumous conception, the deceased must have consented in a record that if assisted reproduction occurred after death, the deceased would be a parent

States adopting UPA (in some form): Delaware, North Dakota, Oklahoma, Texas, Utah, Washington, Wyoming

📊 State-specific statutes

Many states have enacted their own statutes addressing specific issues:

Artificial insemination statutes (most common):

Husband who consents is legal father
Sperm donor is not legal father
Consent requirements vary (written vs. any form)

Posthumous conception statutes (less common):

Louisiana: Written consent required; child must be born within 3 years
California: Written consent required; child must be in utero within 2 years; designated person must give notice within 4 months of death
Florida: Written agreement required; child can only inherit if provided for in will
Virginia: Consent in writing required; implantation must occur within 10 months unless consent specifies otherwise

Surrogacy statutes (rare):

Some states prohibit surrogacy contracts (e.g., New York historically)
Some states regulate but permit surrogacy (e.g., California)
Most states have no specific surrogacy legislation

📊 Inheritance-specific provisions

Some statutes specifically address inheritance rights:

Georgia: Child conceived by artificial insemination and presumed legitimate "shall be considered a child of the parents and entitled to inherit under the laws of intestacy from the parents and from relatives of the parents."

Connecticut:

Child born from artificial insemination may inherit from mother and consenting spouse, but not from biological father
Mother and consenting spouse may inherit from child
Terms like "child," "issue," "descendant" in wills include children born from artificial insemination

Arkansas: "Any child conceived following artificial insemination of a married woman with the consent of her husband shall be treated as their child for all purposes of intestate succession."

Don't confuse: Statutes addressing artificial insemination do not necessarily apply to in vitro fertilization, surrogacy, or posthumous conception. Courts must determine whether to apply statutes by analogy or develop separate rules.

⚠️ Common Pitfalls and Distinctions

⚠️ Biological vs. legal parentage

Biological parent: Person with genetic connection to child (provided egg or sperm)

Legal parent: Person recognized by law as having parental rights and responsibilities

Critical distinction: A person can be a biological parent without being a legal parent (e.g., sperm donor, egg donor, genetic parent who waived rights). Only legal parents have inheritance rights.

Example: Man donates sperm anonymously. He is the biological father but not the legal father. The child cannot inherit from him.

⚠️ Consent to procedure vs. consent to parenthood

Consent to procedure: Agreeing to the medical process of artificial insemination, in vitro fertilization, etc.

Consent to parenthood: Agreeing to be recognized as the legal parent with all rights and responsibilities

Critical distinction: A person might consent to help someone else have a child (e.g., sperm donor, egg donor, surrogate) without consenting to be a parent themselves.

Example: Man agrees to donate sperm to help his sister have a child. He consents to the procedure but not to being the legal father. If he later develops a parental relationship with the child, courts might find implied consent to parenthood based on his conduct.

⚠️ Traditional vs. gestational surrogacy

Traditional surrogacy: Surrogate's own egg is used; she is the genetic mother

Gestational surrogacy: Embryo from intended mother's egg (or donor egg) is implanted; surrogate has no genetic connection

Critical distinction: Traditional surrogates have a stronger claim to legal maternity because they are both the genetic and gestational mother. Gestational surrogates' claims rest solely on gestation.

⚠️ Timing of consent and withdrawal

When consent matters: Consent must exist at the time of conception (for artificial insemination) or at the time of the agreement (for surrogacy)

When withdrawal is effective: Generally, withdrawal must occur before conception to prevent establishment of legal parentage

Critical distinction: Post-conception or post-birth withdrawal is generally ineffective. The law does not allow parents to "change their minds" after a child is born.

Example: Husband consents to artificial insemination. Wife becomes pregnant. Husband then says he no longer wants to be the father. His withdrawal is ineffective; he is the legal father.

⚠️ Inheritance through vs. inheritance from

Inheritance from: Child inherits directly from parent's estate

Inheritance through: Child inherits from parent's relatives (grandparents, aunts, uncles) by virtue of being the parent's child

Critical distinction: Even if a posthumously conceived child cannot inherit from the deceased parent's estate (due to timing or lack of consent), the child might still inherit through that parent from other relatives if recognized as the legal child.

Example: Father dies in 2010. Child conceived with his sperm is born in 2013. Father's will was executed in 2009 and does not mention posthumously conceived children. Child cannot inherit from father's estate. But if father's mother (child's grandmother) dies intestate in 2015, child might inherit from grandmother as father's "issue" or "descendant."

Testamentary Freedom

Chapter Seven: Testamentary Freedom

🧭 Overview

🧠 One-sentence thesis

Testamentary freedom—the right to control the distribution of one's property at death—is a fundamental property right protected by law, but it is not absolute and may be limited by public policy concerns, particularly when conditions attached to bequests unreasonably restrain marriage or violate constitutional protections.

📌 Key points (3–5)

The right to dispose of property at death is a separate property right that belongs to the property owner and survives death, allowing testators to control distribution as long as they comply with the law.
Testamentary freedom is not absolute: preexisting obligations (like spousal rights) may have priority, and testators may place reasonable restrictions on inheritance, but unreasonable or harmful conditions will be invalidated.
Conditions affecting marriage are scrutinized: courts distinguish between reasonable partial restraints (e.g., marry within a religious faith) and unreasonable or total restraints (e.g., never marry), and between conditions precedent (must be met to inherit) and conditions subsequent (cause forfeiture after vesting).
Common confusion—condition precedent vs. condition subsequent: a condition precedent requires the beneficiary to qualify before taking the gift (no vested interest until met); a condition subsequent can divest an already-vested interest (beneficiary must have notice of the condition to be bound).
Public policy balancing test: courts weigh testamentary freedom against policies favoring marriage freedom, religious liberty, and protection from "dead hand" control, invalidating conditions only when they are unreasonable, encourage divorce, or violate fundamental rights.

⚖️ The constitutional and statutory framework

🏛️ Property rights and the right to dispose

The right to dispose of property at death is a separate property right that belongs to the owner of the property.

Property consists of a "bundle of sticks" or rights: the right to include, exclude, and dispose.
During life, a person clearly has the right to dispose of property by gift or sale.
The question is whether this right survives the owner's death.
Answer from Hodel v. Irving: Yes—"the right to pass on valuable property to one's heirs" is itself a valuable property right included in the bundle of ownership rights.
- If the government takes away this right (e.g., by regulation or statute), it must pay just compensation under the Fifth Amendment's Takings Clause.

Example: Congress enacted a statute that caused small fractional interests in Indian land to escheat (revert) to the tribe at the owner's death, preventing descent or devise. The Supreme Court held this was an unconstitutional taking because it completely abolished both descent and devise, depriving the decedent of the right to pass property to heirs without compensation.

🚫 No inherent right to inherit

The right to transmit or inherit property is not an inherent or natural right but is purely a statutory right and subject to legislative control and restriction. (Ostrander v. Preece)

Heirs have no vested right in a living person's estate—only "heirs apparent" with mere expectancies.
An heir apparent has no vested property rights in the ancestor's estate prior to the ancestor's death.
Legislation dealing with estates of persons who die after the statute's effective date does not deal with vested rights and is generally valid.
Don't confuse: The decedent's right to dispose (a property right) vs. the heir's expectation to inherit (not a property right until the decedent dies).

Example: In Ostrander, Ohio enacted a statute providing that if a spouse or heir dies within three days of the decedent (or within 30 days if from a common accident), the estate passes as if the decedent survived the heir. The court upheld the statute because heirs had no vested rights before the decedent's death—only expectancies that could be altered by legislation.

📜 Statutory support for testamentary freedom

Illinois law (discussed in Feinberg) demonstrates strong public policy favoring testamentary freedom:

Source	Provision	Implication
Probate Act	Only two limits: (1) surviving spouse may renounce the will; (2) after-born children receive intestate share unless disinherited	Testator has broad freedom; no obligation to provide for children or grandchildren
Trusts and Trustees Act	Settlor may specify rights, powers, duties, limitations "where not otherwise contrary to law"	Settlor's intent controls unless it violates law or public policy
Statute Concerning Perpetuities	Modifies common-law rule against perpetuities; allows "qualified perpetual trusts"	Protects testator's intent from automatic invalidation; trust terminates by operation of law rather than being void ab initio
Rule in Shelley's Case Abolishment Act	Abolishes common-law rule that life estate to A with remainder to A's heirs passes to A in fee simple	Gives effect to testator's actual intent rather than imposing common-law construction

Key principle: Courts strive to discover and give effect to the testator's intent, provided it is not contrary to public policy.

🔒 Reasonable vs. unreasonable restrictions on marriage

🧩 The general framework

Courts have long recognized that testators may impose partial restraints on marriage (e.g., marry within a certain religion, age, or social class) but not total restraints (e.g., never marry at all).

Total restraints on first marriage are void as against public policy (with one exception: a husband may condition a bequest to his wife on her remaining unmarried after his death).
Partial restraints are valid if they are reasonable and do not operate as a virtual prohibition on marriage.
Reasonableness factors:
- Number of eligible potential spouses in the beneficiary's geographic and social circle
- Time period allowed to comply
- Whether the restriction protects the beneficiary or merely punishes noncompliance
- Whether the restriction encourages divorce or discourages lawful marriage

❌ Unreasonable restraint: Maddox v. Maddox (1854)

Facts: Testator (a Quaker) left a remainder to his niece on condition that she remain a member of the Society of Friends. When she reached marriageable age, there were only 5–6 unmarried male Quakers in her neighborhood. She married a non-Quaker and lost her membership.

Holding: The condition was an unreasonable restraint on marriage and void.

Reasoning:

The small number of eligible bachelors meant the condition operated as a "virtual prohibition" on marriage.
The niece could not be expected to "go abroad" in search of a Quaker husband or wait to be sought by a stranger.
Conditions that are so restrictive as to operate as a virtual prohibition on marriage are void, even if they do not expressly forbid all marriage.

Additional ground: The condition also violated public policy by requiring a religious qualification.

Virginia's policy (like that of other states) favors freedom of religion and conscience.
Conditions that hold out a "premium to fraud, meanness and hypocrisy" or "tend to corrupt the pure principles of religion" by bribing external conformity are void.
The condition "hampers the conscience, holds out inducements to stifle its voice and to resist the force of reason and honest conviction."

Don't confuse: The court also held the condition void because there was no gift over (no alternate beneficiary named if the condition was breached). Without a gift over, the condition is treated as in terrorem (for intimidation only) and does not avoid the bequest.

✅ Reasonable restraint: Shapira v. Union National Bank (1974)

Facts: Dr. Shapira's will left his residuary estate to his three children in equal shares, but conditioned his son Daniel's share on Daniel marrying "a Jewish girl whose both parents were Jewish" within seven years of the testator's death. If Daniel did not comply, his share would go to the State of Israel.

Holding: The condition was a reasonable partial restraint on marriage and valid.

Reasoning:

Not a constitutional violation:
- Daniel argued the condition violated the Fourteenth Amendment's protection of the right to marry, citing Loving v. Virginia (which struck down anti-miscegenation laws).
- Court distinguished: The Constitution protects against state action restricting marriage. Here, the court was not being asked to enforce a restriction on Daniel's right to marry—he remained free to marry anyone. The court was only being asked to enforce the testator's restriction on Daniel's inheritance.
- The right to receive property by will is a creature of statute, not a natural or constitutional right. A testator may entirely disinherit his children, so he may also impose conditions on their inheritance.
Not against public policy:
- The condition was a partial restraint (marry within the Jewish faith), not a total restraint (never marry).
- The condition was reasonable:
  - The seven-year grace period gave Daniel ample time for reflection and compliance.
  - Daniel was not confined to his local county; modern transportation and communication made it feasible to find an eligible spouse.
  - No evidence that the number of eligible Jewish women was so small as to make compliance unreasonably difficult.
- The condition did not encourage divorce (unlike conditions that reward a beneficiary for divorcing).
- The condition did not restrain religious practice—it was a condition on marriage, not on religious belief.
Gift over to the State of Israel:
- The presence of a gift over (to Israel) distinguished this case from Maddox and similar cases where the condition was in terrorem.
- The gift over demonstrated the depth of the testator's conviction: his purpose was not merely to punish Daniel, but to encourage preservation of the Jewish faith and people.

Don't confuse: The court distinguished between:

Conditions on religious faith (e.g., you must remain Catholic to inherit) vs. conditions on marriage to persons of a particular faith (e.g., you must marry a Catholic to inherit). The latter is more remote and less coercive of religious belief.
Testamentary gifts (governed by ecclesiastical and equity rules) vs. devises of real property (governed by common-law rules, which are more lenient toward restraints).

🔍 Condition precedent vs. condition subsequent

This distinction is critical to determining whether a condition is enforceable and whether the beneficiary must have notice.

Type	Definition	Effect if breached	Notice required?	Example
Condition precedent	Beneficiary must meet the condition before the interest vests	Interest never vests; beneficiary takes nothing	No—beneficiary has no vested interest to protect	"To A if A marries within the Jewish faith"
Condition subsequent	Interest vests immediately, but is subject to divestment if condition is breached	Interest is divested; beneficiary loses the property	Yes—beneficiary must have notice of the condition to be bound	"To A, but if A marries outside the Jewish faith, then to B"

From Ransdell v. Boston (1898):

A condition subsequent that is a total restraint on marriage is void, and the donee retains the property unaffected by the breach.
A condition precedent, even if it is a complete restraint on marriage, "will, if broken, be operative and prevent the devise from taking effect."
Why the difference? Once an interest vests, the law strongly disfavors forfeiture. But if the interest never vests, there is nothing to forfeit.

From Shackelford v. Hall (1857):

Testator left remainder to his four children, conditioned on their not marrying before age 21. Daughter Eliza married four months before her 21st birthday.
Court held the condition was a reasonable partial restraint (not marrying until age 21 is not unreasonable).
However, the condition was a condition subsequent (the remainder vested immediately upon the testator's death, subject to divestment).
Because Eliza had no notice of the condition, and because her brother (the executor) had unclean hands (he knew of the condition and had an interest in her forfeiting), the court refused to enforce the forfeiture.
Key principle: "The law always leans hard against a forfeiture of estates once vested."

🚫 Conditions that encourage divorce or discourage marriage

📏 The public policy rule

"It is of the first importance to society that contract and testamentary gifts which are calculated to prevent lawful marriages or to bring about the separation or divorcement of husbands and wives should not be upheld." (Ransdell)

Courts will invalidate testamentary provisions that:

Encourage divorce or separation of spouses, or
Discourage lawful marriage (i.e., operate as an unreasonable restraint).

Exception: If the testator's dominant motive is to provide support in the event of separation or divorce (rather than to encourage it), the condition is valid.

⚠️ Invalid: Encouraging divorce

Case: Winterland v. Winterland (1945)

Testator's codicil directed that his son George's share be held in trust "so long as he may live or until his present wife shall have died or been separated from him by absolute divorce."
Court held the provision void because its "natural tendency" was to encourage divorce.
The couple was not separated at the time the will was executed, so the exception in Ransdell did not apply.
Public policy: "This court will hold as contrary to that policy and void any testamentary provision tending to disturb or destroy an existing marriage."

Case: Estate of Gerbing (1975)

Trust would terminate and distribute corpus to testator's son if his wife predeceased him or if they divorced and remained divorced for two years.
Court held the provision void because it was "capable of exerting a disruptive influence upon an otherwise normally harmonious marriage."
The provision did not fall within the Ransdell exception (couple was not separated when will was executed).
Court refused to sever the two conditions (wife's death vs. divorce), finding the entire provision void.

✅ Valid: Protecting the beneficiary

Case: Ransdell v. Boston (1898)

Testator's son and his wife were separated and cross-suits for divorce were pending at the time the will was executed.
Will gave son a life estate, but if he became "sole and unmarried," he would take in fee simple.
Court upheld the provision because the testator's purpose was "simply to secure the gift to his son in the manner which, in his judgment, would render it of the greatest benefit to him in view of the relations then existing between him and his wife."
The condition did not encourage separation or divorce—both had already occurred before the will was executed.
The testator did not disinherit his son if he remained married; he simply made different provisions depending on his son's marital status.

Case: In re Estate of Gehrt (1985)

Testator left a bequest to his deceased nephew's widow, Betty, provided that "at the time of the testator's death, she remained unmarried."
Betty remarried before the testator's death and sought the bequest anyway.
Court upheld the condition as a condition precedent that did not restrain marriage.
Key reasoning: The condition operated only at the moment of the testator's death to determine Betty's eligibility. It did not control her future conduct or encourage her to remain unmarried.
"The testator could have, for any reason, changed his codicil at any time prior to his death. He could have, at the time of plaintiff's remarriage, immediately executed another codicil cancelling the gift to the plaintiff. He can validly accomplish the same result by using the language that he did."

Don't confuse: A condition that operates prospectively (e.g., "if you divorce in the future, you forfeit") vs. a condition that operates at a fixed point in time (e.g., "if you are unmarried at my death, you take"). The latter is more likely to be upheld.

🕊️ Religious restrictions and public policy

🛐 The tension

Testators often wish to encourage their descendants to marry within their religious tradition. This creates tension between:

Testamentary freedom: the right to dispose of property as one wishes, and
Freedom of religion and conscience: the policy against coercing religious belief or practice.

📖 The Maddox rule (Virginia, 1854)

The court in Maddox held that a condition requiring the beneficiary to remain a member of the Society of Friends violated Virginia's public policy favoring religious freedom.

Reasoning:

Virginia's constitution guarantees "a natural and indefeasible right to worship Almighty God according to the dictates of [one's] own conscience."
A condition that requires membership in a religious sect as a condition of inheritance:
- "Holds out a premium to fraud, meanness and hypocrisy"
- "Tends to corrupt the pure principles of religion, by holding out a bribe for external profession and conformity"
- "Hampers the conscience, holds out inducements to stifle its voice and to resist the force of reason and honest conviction"
The condition made the beneficiary "an object of distrust and suspicion"—her application to be reinstated in the Society was rejected because the meeting suspected her motives were mercenary.

Broader principle: Conditions that require a religious qualification violate public policy because they coerce religious belief or practice.

📖 The Shapira rule (Ohio, 1974)

The court in Shapira distinguished between:

Conditions on religious faith or practice (e.g., you must remain Jewish), and
Conditions on marriage to persons of a particular faith (e.g., you must marry a Jewish person).

The court held that the latter is a partial restraint on marriage, not a restraint on religious practice, and is valid if reasonable.

Reasoning:

The condition does not require Daniel to practice Judaism or to believe in Jewish tenets.
It only restricts his choice of spouse if he wishes to inherit.
Daniel remains free to marry anyone he chooses; he simply will not inherit if he marries outside the faith.
The condition is "too remote" to be regarded as coercive of religious faith.

Counterargument (from Maddox): The condition still offers a "financial inducement to embrace a particular religion" (if the non-Jewish spouse converts). However, the Shapira court did not find this persuasive.

🔍 Modern view: In re Estate of Feinberg (Illinois, 2009)

The Illinois Supreme Court upheld a "beneficiary restriction clause" that deemed any grandchild who married outside the Jewish faith "deceased for all purposes" of the trust.

Key facts:

Max Feinberg created a trust with a beneficiary restriction clause.
His wife, Erla, had a power of appointment over the trust assets.
Erla exercised her power, directing that each grandchild who was not "deemed deceased" under Max's clause would receive $250,000 at her death.
By the time Erla died, four of five grandchildren had married non-Jews (or Jews whose spouses did not convert within one year).

Holding: The beneficiary restriction clause, as given effect by Erla's distribution scheme, did not violate public policy.

Reasoning:

No vested interest until Erla's death:
- Max's trust gave Erla a power of appointment, so the grandchildren had only a "mere expectancy" (not a vested interest) until Erla died.
- Because no interest vested until Erla's death, the restriction was a condition precedent.
- Under Ransdell, even a complete restraint on marriage is enforceable as a condition precedent.
No prospective control:
- The restriction did not operate prospectively to control the grandchildren's future decisions about marriage.
- It operated only at the moment of Erla's death to determine who was eligible for distribution.
- "There was nothing any of the grandchildren could have done at that time to make themselves eligible or ineligible for the distribution."
- This is not "dead hand" control—it is a reward for those whose lives, at the time of Erla's death, most closely embraced the values Max and Erla cherished.
No encouragement of divorce:
- The restriction did not fall within the line of cases (Winterland, Gerbing) invalidating provisions that encourage divorce.
- It concerned the decision to marry, not an incentive to divorce.
Gift over to the State of Israel:
- The gift over demonstrated Max's purpose: to encourage preservation of the Jewish faith and people, not merely to punish noncompliance.
- This distinguished the case from Maddox (no gift over, so condition was in terrorem).
Testamentary freedom:
- Illinois has a strong public policy favoring testamentary freedom.
- Max and Erla had no obligation to provide for their grandchildren at all (they were not heirs at law).
- Courts should not invalidate a testamentary provision unless it is "so capable of producing harm that its enforcement would be contrary to the public interest."

Don't confuse: The court clarified that it was not reviewing the validity of Max's original trust provision (which would have held assets in trust for the grandchildren's lifetimes, subject to forfeiture if they married outside the faith). That provision was revoked by Erla's exercise of her power of appointment. The court was only reviewing Erla's distribution scheme, which operated at a fixed point in time (her death).

🧭 Practical guidance for evaluating restrictions

🔑 Step-by-step analysis

When evaluating whether a testamentary or trust restriction violates public policy, courts consider:

What type of restriction is it?
- Total restraint on marriage (presumptively invalid, except husband to wife)
- Partial restraint on marriage (valid if reasonable)
- Encouragement of divorce (invalid unless dominant motive is to provide support)
- Religious qualification (may be invalid as restraint on conscience, or valid as partial restraint on marriage)
Is it a condition precedent or condition subsequent?
- Condition precedent: No vested interest until condition is met; even a total restraint may be enforceable; no notice required.
- Condition subsequent: Interest vests immediately, subject to divestment; total restraints are void; notice required to enforce forfeiture.
Is the restriction reasonable?
- How many eligible potential spouses are available?
- How much time is allowed to comply?
- Does the restriction operate prospectively (controlling future conduct) or at a fixed point in time?
- Does it protect the beneficiary or merely punish noncompliance?
Is there a gift over?
- If no gift over, the condition may be treated as in terrorem and void.
- If there is a gift over, the testator's intent is clearer and more likely to be enforced.
What is the testator's motive?
- To benefit the intended beneficiary (more likely valid)
- To punish or control the beneficiary (less likely valid)
- To encourage divorce or discourage marriage (invalid)
- To preserve family values or religious tradition (may be valid if restriction is reasonable)
Does the restriction violate a fundamental right?
- If it requires state enforcement of a restriction on marriage, it may violate the Fourteenth Amendment (but this is rare—see Shapira).
- If it coerces religious belief or practice, it may violate public policy (see Maddox).
Balancing test:
- Weigh the public policy favoring testamentary freedom against the public policy disfavoring the particular restriction.
- Use the test sparingly: "The power to invalidate part or all of an agreement on the basis of public policy is used sparingly because private parties should not be needlessly hampered in their freedom to contract [or dispose of property by will]."

🎯 Common scenarios

Scenario	Likely outcome	Reasoning
"To A if A never marries"	Invalid (total restraint)	Violates public policy favoring marriage; void as condition subsequent; may be enforceable as condition precedent
"To A if A marries within 7 years"	Valid	Reasonable time limit; does not prohibit marriage, only delays inheritance
"To A, but if A divorces, then to B"	Invalid	Encourages divorce; violates public policy protecting marriage
"To A if A is unmarried at my death"	Valid	Operates at fixed point in time; does not control future conduct (Gehrt)
"To A if A marries within the Catholic faith"	Valid if reasonable	Partial restraint; valid if sufficient number of eligible spouses available (Shapira)
"To A if A remains a member of the Quaker faith"	Invalid	Coerces religious belief; violates freedom of conscience (Maddox)
"To A if A marries a person of the same race"	Likely invalid	Racial classifications are subject to strict scrutiny; may violate Equal Protection Clause
"To A if A does not marry an alcoholic"	Valid	Protects beneficiary; reasonable restriction
"To A if A completes rehab and stays sober for 6 months"	Valid	Protects beneficiary; encourages healthy behavior

Don't confuse: The outcome often depends on the specific facts (number of eligible spouses, time allowed, geographic constraints, etc.) and the jurisdiction's approach to testamentary freedom vs. protection of marriage and religious liberty.

Chapter Eight: Disinheritance

🧭 Overview

🧠 One-sentence thesis

Most U.S. states allow parents to completely disinherit their children, but the law imposes automatic disinheritance on slayers who kill their benefactors and permits courts to invalidate conditions in wills that violate public policy.

📌 Key points (3–5)

Testamentary freedom vs. protection: The majority of U.S. states permit parents to disinherit children entirely; only Louisiana protects minor and disabled children as "forced heirs."
Negative disinheritance rule: Under common law, merely stating disinheritance was insufficient—property passing by intestacy could still go to the disinherited child; modern statutes (e.g., UPC § 2-101(b)) treat disinherited heirs as if they disclaimed or predeceased the testator.
Slayer statutes: A person who willfully and unlawfully kills another is barred from inheriting from the victim's estate; the key issue is whether the killing was "willful" (intentional/knowing).
Common confusion—willful vs. unintentional killing: Most slayer statutes require intentional or reckless conduct; insanity, assisted suicide, or criminally negligent homicide may not qualify as "willful" killing depending on jurisdiction.
Why it matters: Disinheritance rules balance testamentary freedom, family protection, and the principle that wrongdoers should not profit from their crimes.

🏛️ Testamentary freedom and forced heirship

🏛️ The majority rule: complete disinheritance allowed

In most U.S. states, a parent may disinherit a child for any reason or no reason at all.
Courts typically do not scrutinize the testator's motives for disinheritance.
Example: A millionaire parent can leave nothing to a dependent minor child, forcing the government to provide financial support.

🛡️ Louisiana's forced heir exception

Forced heirs: Descendants of the first degree who are under 23 years old or permanently incapable of caring for themselves due to mental incapacity or physical infirmity at the time of the decedent's death (LSA. C.C. Art. 1493).

Louisiana is the only state that mandates parents leave a portion of their estate to minor or disabled children.
The decedent is "forced" to name these heirs in the will, and the probate court must recognize them under intestacy.
Don't confuse: This is not a spousal elective share (which exists in all states); it is a protection for vulnerable children only.

🚫 Negative disinheritance and modern reforms

🚫 The common law negative disinheritance rule

What it required: To disinherit a child, a parent had to do more than simply state "Child X is disinherited."
The problem: If any property passed by intestacy (e.g., the will was invalidated or failed to dispose of all assets), the disinherited child could still inherit that property.
Example (from In re Estate of Melton): Ross stated "Susie is not to inherit any of my property" but failed to devise his 500-acre farm. Under the negative disinheritance rule, Susie could inherit the farm because it passed by intestacy.

🔄 Modern statutory reforms (UPC § 2-101(b))

UPC § 2-101(b): "A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share."

How it works: The disinherited person is treated as if they disclaimed their intestate share (or predeceased the testator).
Effect: Even if the will does not dispose of all property, the disinherited heir cannot take by intestacy.
Example: In Melton, Nevada's statute (NRS 132.370) defined "will" to include an instrument that "merely...excludes or limits the right of an individual...to succeed to property...passing by intestate succession." The court held that Melton's disinheritance clause was enforceable even though his only named devisee predeceased him, and his estate escheated to the state.

⚖️ Escheat when all heirs are disinherited

When a testator disinherits all heirs and fails to affirmatively devise the estate, the property escheats to the state.
Rationale: A disinherited heir is treated as if they never existed (or predeceased the testator), so there are "no surviving spouse or kindred" under the escheat statute.
Don't confuse: The law disfavors escheats, but modern statutes prioritize testamentary freedom over keeping property in the family.

👶 Child support obligations and disinheritance

👶 Support obligations survive death

The rule (Estate of D.M.R.): A parent's court-ordered child support obligation does not terminate upon the parent's death; the estate must continue to support the minor child.
Why: State and federal law mandate that dependent children be maintained "as completely as possible" from parental resources.
Example: A father died owing child support to his minor daughter. His will disinherited her, leaving everything to a trust for his adult daughter and sister. The court held that the child support obligation was a debt of the estate that took priority over testamentary dispositions.

🏦 Inter vivos trusts are reachable

Assets in an inter vivos trust over which the decedent retained control (e.g., power to revoke or modify) are included in the estate for purposes of satisfying child support obligations.
Rationale: The decedent could have used those assets to pay debts during life, so creditors (including children owed support) can reach them after death.

🔍 Disinheritance vs. debt

Key distinction: A parent can disinherit a child (refuse to leave them property beyond what is legally required), but cannot nullify a pre-existing legal obligation (like child support) by disinheritance.
Beyond satisfying support obligations, a parent is free to disinherit a child completely.

⚔️ Slayer statutes: disinheritance by operation of law

⚔️ The slayer rule

Slayer statute (Alaska § 13.12.803): "An individual who feloniously kills the decedent forfeits all benefits under this chapter with respect to the decedent's estate...If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share."

Purpose: Prevent a wrongdoer from profiting from their crime.
Effect: The slayer is treated as if they predeceased the victim or disclaimed their share.
Example: Erik and Lyle Menendez killed their parents to inherit a $14 million estate. They were convicted of first-degree murder and barred from inheriting.

🧠 What "willful" means

In criminal law: "Willfully" = "knowingly" and "intentionally" (deliberate, purposeful conduct).
In civil/tort law: Acting with awareness of a risk and disregard for it, making harm highly probable.
Key point: Most slayer statutes require intentional or reckless killing; accidental or negligent homicide may not qualify.

🔍 Burden of proof in probate court

Criminal conviction: Not required; the probate court can independently determine whether the slayer statute applies.
Standard of proof: Preponderance of the evidence (civil standard), not beyond a reasonable doubt.
Example: A person acquitted in criminal court (like O.J. Simpson) can still be found liable in civil court and barred from inheriting.

🧩 Exceptions to the slayer rule

🧩 Assisted suicide

The issue (In re Estate of Schunk): Does assisting someone to commit suicide constitute "willful killing"?
Wisconsin's holding: No. "Killing" means depriving another of life; a person who provides the means for another to kill themselves is not the "killer."
Rationale: The decedent, not the assistant, caused their own death. The assistant did not "deprive" the decedent of life.
Don't confuse: Assisting suicide may be a crime, but it is not "killing" within the meaning of the slayer statute.

🧠 Insanity and lack of willfulness

The issue (Estate of Armstrong): Can an insane person "willfully" kill another?
Majority rule: No. An insane person lacks the capacity to act willfully, knowingly, or intentionally.
Mississippi's holding: The slayer statute requires a finding of willful conduct. If the killer was insane at the time of the killing, the statute does not apply.
Rationale: "Self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument."
Procedure: The probate court must hold a hearing to determine the killer's mental state at the time of the killing.

⚖️ Minority rule: insanity is no defense

Some jurisdictions (e.g., Illinois, Virginia, Washington) hold that even an insane killer is barred from inheriting if they were cognizant that they were killing a person.
Rationale: The slayer statute is civil, not criminal; a not-guilty-by-reason-of-insanity verdict does not make the killing "lawful."

🧒 Descendants of the slayer

The issue (In re Estate of Van Der Veen): If a slayer is barred from inheriting, can the slayer's children inherit through them?
Kansas holding: Yes. The slayer is treated as if they predeceased the decedent. If the will provides for distribution "per stirpes," the slayer's descendants take the slayer's share.
Example: Kent killed his parents. His biological child (who had been adopted) inherited Kent's share under the grandparents' will, which devised property "equally and per stirpes."
Don't confuse: The slayer is disqualified, but their innocent descendants are not punished for the slayer's crime.

📊 Comparison of approaches

Issue	Common law / Traditional rule	Modern / UPC rule
Negative disinheritance	Disinheritance clause ineffective as to intestate property	Disinherited heir treated as disclaiming or predeceasing (UPC § 2-101(b))
Slayer statute scope	Intentional killing only	Most states: intentional/reckless; Alaska: includes negligent homicide with "manifest injustice" exception
Insanity defense	Majority: insane killer cannot act "willfully"	Minority: insanity is no defense if killer was aware of their actions
Slayer's descendants	Varies by jurisdiction	Treated as if slayer predeceased; descendants may inherit per stirpes
Assisted suicide	Not addressed	Not "killing" within slayer statute (e.g., Wisconsin)

🔑 Key takeaways for review

🔑 Testamentary freedom is broad but not absolute

Parents can disinherit children in most states, but pre-existing legal obligations (like child support) survive death.
Louisiana is the outlier: it protects minor and disabled children as forced heirs.

🔑 Negative disinheritance has been reformed

Under common law, disinheritance clauses were ineffective as to intestate property.
Modern statutes (UPC and state equivalents) treat disinherited heirs as if they disclaimed or predeceased the testator, preventing them from taking by intestacy.

🔑 Slayer statutes require willful conduct

"Willful" = intentional, knowing, purposeful.
Insanity, assisted suicide, and (in some states) negligent homicide may not meet the "willful" standard.
Probate courts can independently determine whether the statute applies, using a preponderance-of-evidence standard.

🔑 Innocent descendants are not punished

If a slayer is barred from inheriting, their descendants may still take the slayer's share if the will or intestacy statute provides for per stirpes distribution.

🔑 Public policy limits testamentary freedom

Courts will not enforce will provisions that violate public policy (e.g., conditions that encourage divorce or illegal conduct).
The slayer rule reflects the principle that no one should profit from their own wrongdoing.

Chapter Nine: Testamentary Capacity (Mental Competency and Insane Delusion)

🧭 Overview

🧠 One-sentence thesis

A testator must possess minimal mental competence—knowing their property, their natural heirs, and the nature of making a will—and must not be controlled by insane delusions that materially affect the will's dispositions, even though the bar for testamentary capacity is lower than for contracts or other legal acts.

📌 Key points (3–5)

Low threshold for capacity: Testamentary capacity requires far less mental competence than executing a contract, obtaining a marriage license, or transferring property by deed.
Four-part test (Cunningham): The testator must know (1) the nature and extent of property, (2) the natural objects of bounty, (3) the disposition being made, and (4) how these facts relate to form an orderly plan.
Insane delusion doctrine: A testator may meet the basic capacity test yet still have an invalid will if an insane delusion—a fixed false belief unsupported by evidence and resistant to correction—materially affects the will's terms.
Common confusion—mental illness vs. legal incapacity: A diagnosis of dementia, schizophrenia, or other mental illness does not automatically mean lack of testamentary capacity; the question is whether the testator met the legal standard at the moment of execution.
Guardianship/conservatorship does not equal incapacity: Appointment of a guardian or conservator creates no presumption that the protected person lacks testamentary capacity; the two inquiries are separate.

🧩 Core concepts of testamentary capacity

🧩 What testamentary capacity measures

Testamentary capacity: the minimal mental competence required to execute a valid will, assessed at the time of execution.

It is not a psychological diagnosis; it is a legal standard.
The level of capacity needed is very low compared to other legal acts (contracts, deeds, marriage).
The attorney drafting the will has a duty to determine whether the client meets this standard, even though most attorneys lack formal psychological training.

Example: A person with diagnosed schizophrenia may still possess testamentary capacity if, at the moment of signing, they understand what they own, who their family is, and what the will does.

🔍 The four-part Cunningham test

At the time of execution, the testator must know:

The nature and extent of property: A general understanding of what they own (not necessarily exact values or every item).
The natural objects of bounty: Who their family members and close relations are.
The disposition being made: What the will does—who gets what.
How these facts relate: An orderly plan connecting property, heirs, and dispositions.

Don't confuse: "Knowing the extent of property" does not mean knowing exact dollar amounts or every asset; a general sense of the "kind and character" of property suffices (Romero).

⚖️ Presumption and burden of proof

Presumption of capacity: Every testator is presumed competent; the law favors testacy over intestacy.
Burden on contestant: The person challenging the will must prove by a preponderance of the evidence (or clear and convincing evidence, depending on jurisdiction) that the testator lacked capacity.
Rebutting the presumption: Evidence of mental illness, guardianship, or medical records may rebut the presumption, shifting the burden to the proponent to prove capacity.

🧷 What affects—and does not affect—capacity

🧷 Mental illness and diagnosis

A diagnosis of dementia, Alzheimer's, bipolar disorder, or other mental illness does not automatically destroy testamentary capacity.
The question is whether the illness prevented the testator from meeting the four-part test at the moment of execution.
Lucid intervals: A person with a progressive mental illness may have periods of clarity; capacity is judged at the time the will is signed.

Example (Romero): Decedent had schizophrenia and auditory hallucinations, but the drafting attorney testified that decedent understood his property, his family, and his wishes—capacity was found.

🛡️ Guardianship and conservatorship

Appointment of a guardian or conservator does not create a presumption of testamentary incapacity.
The two inquiries are separate: a conservator manages the estate during life; testamentary capacity governs disposition at death.
Even an involuntary conservatee retains the right to decide how property is distributed upon death (Oliver).

Don't confuse: Incompetence to manage finances (conservatorship) ≠ incapacity to make a will.

📅 Timing: capacity at execution

The critical time is the moment the will is executed.
Evidence of mental state before or after execution is admissible only to help infer capacity at the time of signing.
A person may lack capacity one day and regain it the next (lucid interval).

Example (Oliver): Testator was under conservatorship and had dementia, but witnesses at execution testified she knew her family, her property, and her wishes—capacity was found at that moment.

🧠 What the testator need not know

Perfect memory: Not required; forgetting some assets or their exact value does not destroy capacity.
Complex reasoning: The testator need not be capable of intricate business transactions or sophisticated judgments.
Absolute soundness of mind: Eccentricity, poor judgment, or age-related memory decline alone do not negate capacity.

🩺 Evidence and the role of the drafting attorney

🩺 Attorney's duty and testimony

The drafting attorney must assess capacity during the initial interview and execution.
Attorney testimony is highly probative when the attorney:
- Met privately with the testator.
- Explained the will's terms and confirmed the testator's understanding.
- Observed the testator's demeanor and responses.

Example (Paine): The attorney never met the testator in person, only spoke by phone, and did not supervise execution—his testimony provided little evidence of capacity.

🩺 Medical records and expert testimony

Medical records (diagnoses, evaluations, treatment notes) are admissible to show mental state before or after execution.
Expert witnesses (psychiatrists, psychologists) may opine on capacity based on records and evaluations.
Cherry-picking caution: Courts may reject expert opinions that ignore contrary evidence or selectively cite favorable records (Paine).

Example (Paine): Proponent's expert cited notes describing dementia as "mild" but ignored neuropsychological reports showing significant cognitive impairment—court found the opinion unpersuasive.

🩺 Witness testimony at execution

Witnesses to the will signing may testify about the testator's appearance, behavior, and statements.
Limited value if superficial: If witnesses only exchanged social pleasantries and did not discuss the will's contents, their testimony may not prove capacity (Paine).

🌀 Insane delusion doctrine

🌀 What is an insane delusion?

Insane delusion: a fixed false belief that has no basis in fact, is resistant to correction by evidence or argument, and is the product of a diseased or deranged mind.

It is not a mistaken belief that can be corrected by presenting the truth.
It is not mere prejudice, dislike, eccentricity, or poor judgment.
The delusion must be irrational and persistent despite contrary evidence.

Example (from text): T believes all cats are black. When shown a white cat, T insists it cannot be a cat because it is not black—this is an insane delusion (resistant to correction). If T says, "I never knew white cats existed; now I do," it is a correctable mistake, not a delusion.

🌀 Two-part insane delusion test

Was the testator suffering from an insane delusion at execution?
Did the delusion materially affect the will's dispositions?

Both prongs must be satisfied to invalidate the will.

Don't confuse: A testator may have insane delusions about some topics but still have capacity if the delusions do not affect the will. Conversely, a testator may meet the four-part capacity test but still have an invalid will if an insane delusion controlled the dispositions (Killen).

🌀 Insane delusion vs. rational dislike

A testator may dislike or distrust family members for no good reason and disinherit them—this is valid if the testator is otherwise competent.
But if the dislike is based on a false belief unsupported by facts and the testator cannot be dissuaded, it is an insane delusion.

Scenario	Insane delusion?
Testator dislikes daughter for being "ungrateful" (subjective, no clear facts)	No—rational (if eccentric) judgment
Testator believes daughter is poisoning him; shown lab results proving food is safe; still insists she is poisoning him	Yes—fixed false belief resistant to evidence
Testator believes daughter stole money; money is returned and accounted for; testator still accuses her of theft	Yes—delusion persists despite contrary facts (Watlack)

🌀 Causation: delusion must affect the will

The insane delusion must be the controlling reason for the disposition.
If the testator had other rational reasons for the disposition, the delusion may not invalidate the will—but courts scrutinize this closely.

Example (Killen): Testator believed nephews and niece lived in her attic, sprayed chemicals on her, and were in the Mafia. She left them $1 each. Expert testified the delusions controlled her perception of them and caused the disinheritance—will invalid.

Example (Watlack): Testator believed daughter stole $98,000; attorney informed him the money was in the attorney's possession; testator still accused daughter of theft at will signing. Court found the delusion was the controlling reason for disinheritance—will invalid.

📊 Applying the tests: case summaries

📊 In re Estate of Romero (testamentary capacity upheld)

Facts:

Decedent had schizophrenia, auditory hallucinations, and a VA guardianship over finances.
Executed will leaving $500 to each child and residue to mother and sister.
Contestants argued lack of capacity and insane delusion.

Holding:

Capacity found: Drafting attorney testified decedent understood his property (VA benefits, accumulated funds), knew his family, and expressed clear wishes. Decedent did not know exact dollar amount in VA account, but this is not required—general understanding suffices.
No insane delusion: No evidence delusions about the value of his estate affected the will; his intent was to benefit mother and sister regardless of estate size.
VA guardianship irrelevant: Guardianship over finances ≠ lack of testamentary capacity.

Key takeaway: Meeting with the drafting attorney and articulating wishes, even without knowing exact asset values, supports capacity.

📊 Matter of Estate of Oliver (testamentary capacity upheld)

Facts:

Testator had degenerative dementia and an involuntary conservatorship.
Changed will and beneficiaries on certificates of deposit while under conservatorship.
Contestants argued conservatorship = incapacity.

Holding:

Capacity found: Drafting attorney and bank witnesses testified testator knew her family, her property, and her wishes at the moment of execution.
Conservatorship does not bar testamentary acts: A conservatee retains the right to make a will and change beneficiaries; the two inquiries are separate.
Burden on contestant: Contestant must prove lack of capacity; mere existence of conservatorship and dementia diagnosis insufficient.

Key takeaway: Involuntary conservatorship does not create a presumption of testamentary incapacity; focus is on capacity at execution.

📊 Paine v. Sullivan (testamentary capacity NOT proven)

Facts:

Testator had Alzheimer's diagnosis (2001), progressive cognitive decline, and 24-hour supervision.
By 2001, could no longer handle finances due to "confusion."
Executed will in 2004; attorney never met testator in person, only spoke by phone; testator confirmed he wanted what his wife wanted.
Attorney mailed will to testator; execution at bank with no discussion of terms.

Holding:

Presumption rebutted: Medical records showed significant cognitive deficits (memory, judgment, orientation) from 2001 onward; driving contraindicated; needed supervision.
Proponent failed to prove capacity: Attorney provided no evidence of capacity at execution (no in-person meeting, no discussion of terms, no confirmation testator understood). Bank witnesses recalled no specifics and did not discuss the will.
Expert testimony insufficient: Proponent's expert "cherry-picked" favorable notes and ignored contrary evidence; ability to participate in medical decisions (with careful explanation) does not prove capacity to execute a will (where no explanation occurred).

Key takeaway: When medical evidence rebuts the presumption, the proponent must affirmatively prove capacity at execution; superficial attorney involvement and witness testimony are insufficient.

📊 Matter of Estate of Killen (insane delusion invalidated will)

Facts:

Testator had delusional paranoid disorder (diagnosed 8 days before will execution).
Believed nephews and niece lived in her attic, sprayed chemicals on her, pulled out her tooth, were in the Mafia, and were trying to kill her.
In reality, nephews and niece cared for her and treated her well.
Will left them $1 each; bulk of estate to others.

Holding:

Insane delusion found: Beliefs were fixed, false, had no basis in fact, and persisted despite contrary evidence (family's good treatment).
Delusion affected the will: Expert testified delusions controlled her perception of nephews and niece and caused the disinheritance.
Capacity test met but will still invalid: Testator knew the natural objects of her bounty (could name them) but had a "skewed perception" due to delusions—this satisfies the insane delusion test and invalidates the will.

Key takeaway: A testator may know who their family is (capacity test) but still have an invalid will if insane delusions about those family members control the dispositions.

📊 Matter of Estate of Watlack (insane delusion invalidated will)

Facts:

Testator believed daughter stole $98,000 from sale of his house.
Daughter had arranged for check to be held (to prevent dissipation) and delivered it to testator's attorney the day before will signing.
Attorney informed testator the check was in his possession; testator requested it be placed in interest-bearing account.
Next day, at will signing, testator was agitated, pounded desk, and accused daughter of stealing the money—even though he knew the check was with his attorney.

Holding:

Insane delusion found: Belief daughter stole money was false (check was with attorney), had no rational basis, and persisted despite contrary evidence (attorney's disclosure).
Delusion affected the will: Testator made appointment to change will shortly after accusing daughter of theft; expressed anger at daughter during will drafting and signing; disinheritance was product of the delusion, not rational reasons (minimal contact, prior gift of car).

Key takeaway: A delusion is insane if the testator clings to it despite being shown contrary facts; if the delusion is the controlling reason for disinheritance, the will is invalid.

🔬 Distinguishing capacity from insane delusion

🔬 Two separate doctrines

Testamentary capacity (Cunningham test): Does the testator have the minimal mental competence to execute a will?
Insane delusion test: Does the testator have a fixed false belief that materially affects the will?

A testator may pass the capacity test but fail the insane delusion test (Killen).

🔬 How they interact

Situation	Capacity test	Insane delusion test	Result
Testator knows property, family, and plan; no delusions	Pass	N/A	Valid will
Testator has dementia but understands property, family, and plan at execution; no delusions	Pass	N/A	Valid will
Testator knows family members but has fixed false belief about them that controls disinheritance	Pass	Fail	Invalid will
Testator cannot name family or property due to severe dementia	Fail	N/A	Invalid will

🔬 Why the distinction matters

Contestants often argue both lack of capacity and insane delusion because proving lack of capacity alone is very difficult (the bar is so low).
Insane delusion is often the stronger argument when the testator had some cognitive function but was controlled by a specific false belief.

Example (Killen): Testator could name her family and property (capacity), but her delusions about nephews and niece being in the Mafia and trying to kill her controlled the will—insane delusion doctrine applied.

🛠️ Practical guidance for attorneys and contestants

🛠️ For drafting attorneys

Assess capacity during initial interview: Ask questions to confirm the client knows their property, family, and the plan.
Document the assessment: Take notes on the client's responses and demeanor.
Meet privately with the client: Ensure no undue influence; confirm the client's independent wishes.
Explain the will's terms: Read or summarize each provision; confirm the client understands and agrees.
Supervise execution: Be present at signing; observe the client's behavior and capacity at that moment.
If capacity is questionable: Request a medical evaluation or decline to draft the will.

Red flags:

Client cannot name family members or describe their property.
Client expresses bizarre beliefs that are clearly false.
Client is heavily medicated, agitated, or confused.
Client defers entirely to a family member and cannot articulate their own wishes.

🛠️ For will contestants

Gather medical records: Diagnoses, evaluations, treatment notes, and hospitalizations before and after execution.
Obtain expert testimony: Psychiatrist or psychologist to opine on capacity and delusions.
Interview witnesses: Family, caregivers, and others who observed the testator's mental state.
Focus on the moment of execution: Evidence of capacity (or lack thereof) at the time the will was signed is most probative.
Argue both doctrines: Lack of capacity (Cunningham test) and insane delusion (if applicable).

Strong evidence of lack of capacity:

Medical records showing severe cognitive impairment at or near execution.
Testimony that the testator could not name family, property, or understand the will.
Drafting attorney's lack of involvement or inability to confirm capacity.

Strong evidence of insane delusion:

Fixed false beliefs about family members (e.g., poisoning, theft, conspiracy).
Testator's refusal to believe contrary evidence.
Disinheritance or unusual dispositions directly tied to the delusion.

⚠️ Common pitfalls and confusions

⚠️ "Mental illness = incapacity"

Wrong. A diagnosis of dementia, schizophrenia, or other mental illness does not automatically mean lack of testamentary capacity. The question is whether the illness prevented the testator from meeting the legal standard at the moment of execution.

⚠️ "Guardianship = incapacity"

Wrong. Appointment of a guardian or conservator does not create a presumption of testamentary incapacity. The two inquiries are separate.

⚠️ "Testator must know exact values"

Wrong. The testator need only have a general understanding of the "kind and character" of property, not exact dollar amounts or every item.

⚠️ "Eccentric or mean-spirited = insane delusion"

Wrong. Disliking family members for no good reason, or making unusual dispositions, does not constitute an insane delusion unless the belief is fixed, false, and resistant to evidence.

⚠️ "Capacity at any time = capacity at execution"

Wrong. Capacity is judged at the moment the will is signed. A testator may have capacity one day and lack it the next (or vice versa, in the case of lucid intervals).

⚠️ "Insane delusion = lack of capacity"

Not quite. Insane delusion is a separate doctrine. A testator may meet the capacity test (know property, family, and plan) but still have an invalid will if an insane delusion materially affects the dispositions.

Chapter Ten: Testamentary Capacity (Undue Influence, Duress and Fraud)

🧭 Overview

🧠 One-sentence thesis

Third parties who manipulate a testator through undue influence, duress, or fraud can invalidate a will because the will no longer reflects the testator's true intent but instead substitutes the wrongdoer's desires.

📌 Key points (3–5)

Three main types of manipulation: undue influence (substituting the influencer's will for the testator's), duress (threats or wrongful acts that coerce the testator), and fraud (knowingly false representations that lead the testator to make unwanted transfers).
Presumption of undue influence: arises when (1) a confidential relationship exists, (2) the person in that relationship receives the bulk of the estate, and (3) the testator had a weakened intellect; this shifts the burden to the proponent to prove good faith by clear and convincing evidence.
Common confusion—undue influence vs. duress: undue influence is subtle and "insidious," gradually overcoming the testator's free will; duress is "gross and palpable," using force or threats of harm to prevent the testator from exercising free will.
Fraud in the inducement vs. fraud in the execution: fraud in the inducement involves misrepresentations that cause the testator to include certain provisions; fraud in the execution tricks the testator into signing a document that does not contain the testator's expressed wishes.
Why it matters: these doctrines protect the testator's right to dispose of property freely; a will procured by manipulation does not express the testator's true intent and may be set aside.

🧩 Core concepts of undue influence

🧩 What undue influence means

Undue influence: control exercised over the testator's mind that overcomes free agency and substitutes the will of another person, causing the testator to do what he or she would not have done otherwise.

It is not merely "some influence"—family members naturally influence each other, and the law accepts that.
The test is whether the influence was strong enough to destroy the testator's free will.
Example: A testator who is physically weak and mentally declining relies entirely on one caregiver who gradually isolates the testator from other family members and convinces the testator to leave everything to the caregiver—this may be undue influence if it substitutes the caregiver's intent for the testator's.

🔍 How to tell if influence is "undue"

The influence must be "such as to overcome [the testator's] free agency."
Courts look at whether the testator was susceptible (due to age, health, mental state, dependency), whether the influencer had opportunity and motive, and whether the will's provisions appear unnatural.
Don't confuse: normal family persuasion or affection is not undue influence; undue influence requires coercion or domination that the testator cannot resist.

🧷 Presumption of undue influence

🧷 When the presumption arises

A presumption of undue influence arises if the contestant proves three elements:

Confidential relationship: one person is in a position to exercise dominant influence over the testator due to the testator's dependency (from weakness of mind or body, or trust).
Bulk of estate: the person in the confidential relationship received the bulk of the estate.
Weakened intellect: the testator had a weakened intellect at the time of execution.

All three elements are subjective and evaluated case-by-case.
Example: An elderly testator with dementia relies on a stepchild for all daily care, transportation, and medical appointments; the stepchild is named sole beneficiary—this may raise a presumption.

🧷 Factors for confidential relationship (Dabney factors)

Courts consider:

Whether one person has been taken care of by another.
Whether a close relationship exists.
Whether transportation and medical care are provided by another.
Whether joint accounts exist.
Whether the testator is physically or mentally weak.
Whether the testator is of advanced age or poor health.
Whether a power of attorney exists.

Don't confuse: a close relationship alone is not enough; the relationship must involve dependency or dominance.

🧷 Shifting the burden

Normally, the contestant bears the burden of proving undue influence.
If a presumption arises, the burden shifts to the proponent to overcome it by clear and convincing evidence.
The proponent must show: (1) good faith, (2) the testator had full knowledge and deliberation, and (3) the testator exhibited independent consent and action.

📊 Overcoming the presumption of undue influence

📊 Good faith factors

To show good faith, courts examine:

Who initiated the will: Did the testator or the beneficiary initiate the will?
Where and in whose presence: Was the will executed openly before disinterested witnesses?
Consideration/fee: Who paid the attorney's fee?
Secrecy or openness: Was the execution done in secret or openly?

Example: In Noblin, the testator called the attorney from his hospital room, the will was executed before two disinterested hospital employees, no fee was paid by the beneficiary, and the execution was open—these facts supported good faith.

📊 Full knowledge and deliberation factors

Courts assess whether the testator:

Was aware of total assets and their worth.
Understood who the "natural inheritors" were.
Understood how the will would affect prior wills.
Knew non-relative beneficiaries would be included.
Knew who controlled finances and the method used (and how dependent/susceptible the testator was).

Example: In Noblin, witnesses testified the testator was "extraordinarily independent," managed his own finances, and was known as "one way Bob"—this supported full knowledge and deliberation.

📊 Independent consent and action

The proponent must show the testator acted on independent consent, not the beneficiary's direction.
Historically, courts required advice from a "competent person disconnected from the beneficiary"; modern cases require "independent consent and action based on all surrounding facts and circumstances."
Example: In Noblin, a disinterested nurse had a conversation with the testator before execution and satisfied herself that "what was taking place was what he wanted to do"—this supported independent consent.

Prong	What the proponent must prove	Example from Noblin
Good faith	Testator initiated; open execution; no fee paid by beneficiary	Testator called attorney; executed at hospital before disinterested witnesses
Knowledge & deliberation	Testator aware of assets, heirs, and consequences	Testator was independent, managed own finances
Independent consent	Testator acted on own volition, not beneficiary's direction	Disinterested nurse verified testator's intent

🧩 Undue influence without a presumption

🧩 Four elements of undue influence

If no presumption arises, the contestant must prove:

Susceptibility: The testator was susceptible to undue influence or domination (due to age, personality, physical/mental health, dependency).
Opportunity: The alleged influencer had the opportunity to exercise influence (time spent with testator, proximity, nature of relationship).
Disposition: The alleged influencer had a disposition to influence for personal benefit (willingness to do something wrong or unfair).
Result: The will's provisions appear unnatural and are the result of such influence.

Example: In Schoppe, the testator's mental acuity declined after a stroke, his son Berwin cared for him for years, but the daughter Brenda allegedly convinced the testator to file a false abuse petition against Berwin and then changed the will to disinherit Berwin—the jury found undue influence.

🧩 Susceptibility

Courts focus on age, personality, physical and mental health, ability to handle business affairs, and level of dependency.
Example: A testator with bipolar disorder, or one who is blind and suffering from renal failure, or one with a court-appointed guardian, may be susceptible.
Don't confuse: physical weakness alone is not enough; mental vulnerability or dependency is key.

🧩 Opportunity

Courts look at time spent with the testator, proximity, and the nature of the relationship.
Example: A caregiver who spends every day with the testator, drives the testator to appointments, and handles the testator's finances has opportunity.
Policy tension: encouraging caregiving vs. preventing exploitation—the person who spends the most time with the testator is often the one who provides care, but also the one with the most opportunity to influence.

🧩 Disposition

The contestant must show the alleged influencer was willing to do something wrong or unfair to secure a larger share.
Example: In Schoppe, the jury could infer Brenda had a "strong dislike" for Berwin and prompted the testator to falsely accuse Berwin of abuse in order to eject Berwin from the testator's life and will.

🧩 Result

The will's provisions must be unnatural or a marked change from prior wills.
Inequality in distribution is evidence of undue influence, but not sufficient alone.
Example: In Schoppe, the 2002 will gave Berwin only $10, whereas the 2001 will gave him a first option to purchase the acreage and an equal share of the remainder—this marked change, combined with other evidence, supported undue influence.

🧷 Duress

🧷 What duress means

Duress: a wrongful act or threat of a wrongful act that coerces the testator into making a donative transfer the testator would not otherwise have made.

Duress is "aggressive undue influence"—it is "gross, obvious, and palpable."
The wrongful act may be physical (assault) or mental (threats to place the testator in a nursing home).
Example: A child threatens to place an elderly parent in a nursing home unless the parent changes the will to favor the child.

🧷 How duress differs from undue influence

Undue influence	Duress
Insidious, subtle, impalpable	Gross, obvious, palpable
Subverts the testator's intent, internalizes the influencer's desire	Prevents the testator's intent from being exercised by force or threats
Gradually overcomes free will	Immediately coerces through wrongful act or threat

Don't confuse: undue influence is a "silent resistless power"; duress is overt coercion.

🧷 Elements of duress (from Rosasco)

Wrongful act or threat: The alleged wrongdoer performed or threatened a wrongful act (an act that is criminal or one the wrongdoer had no right to do).
Past acts as threats: "The doing of an act often involves, without more, a threat that the act will be repeated."
Subjective fear: The test is whether the threat induced fear in the testator "as to preclude the exercise by [the testator] of free will and judgment."
Intent irrelevant: The motivation or intent of the person charged with duress is irrelevant.

Example: In Rosasco, the proponent struck the testator's niece in the testator's presence in 1997; the testator later told the niece, "If I [change my will], he'll hurt me"—the court found this established a prima facie case for duress because the past violence posed a threat of repeated violence, which induced fear in the testator.

🧷 State of mind exception to hearsay

The testator's declarations (e.g., "If I change my will, he'll hurt me") are not considered for their truth, but as evidence of the testator's state of mind.
"The fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of her feelings toward, and relations to, [the proponent]."

🧩 Fraud

🧩 What fraud means

Fraud: a wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer the donor would not otherwise have made.

The misrepresentation must be made with intent to deceive the testator and the purpose of influencing the testamentary disposition.
Example: A neighbor tells the testator, "Your friend Elaine died of cancer," when in fact Elaine is alive; the testator then executes a will leaving everything to charity instead of Elaine—this is fraud if the neighbor knew Elaine was alive and intended to deceive the testator.
Don't confuse: if the neighbor genuinely believed Elaine was dead, there is no fraud (no intent to deceive).

🧩 Fraud in the inducement

Fraud in the inducement occurs at the beginning of the estate planning process.
Someone misrepresents facts to entice the testator into making a disposition that benefits the wrongdoer.
Example: A daughter tells her mother, "Your son Cody has been taking drugs for years," when this is a lie; the mother then executes a will leaving most of the estate to the daughter and only a small trust for Cody—this is fraud in the inducement.

🧩 Fraud in the execution

Fraud in the execution occurs after the will's contents are decided and prior to execution.
The testator is tricked into signing a document that is not the testator's will or does not contain the testator's expressed wishes.
Example: A son retypes his father's will to increase his own share from 25% to 50%, then gives the father only the signature page to sign; the father does not know the terms have been changed—this is fraud in the execution.

Type of fraud	When it occurs	What is misrepresented	Example
Fraud in the inducement	Before will is drafted	Facts about beneficiaries or circumstances	"Your son is a drug addict" (lie) → testator disinherits son
Fraud in the execution	After will is drafted, before signing	The contents of the document itself	Son retypes will to increase his share, father signs without knowing

🧷 Intentional interference with an inheritance expectancy (IIE)

🧷 What IIE means

IIE: a tort that allows a person to sue a third party who, through fraud, duress, or other tortious conduct, prevented the person from receiving an expected inheritance.

IIE resembles a will contest, but it is a separate tort action filed in civil court (not probate court).
The purpose is to protect the testator's right to dispose of property freely, not primarily to protect the beneficiary's expectations.
Example: A stepchild uses undue influence to procure a will in her favor, then fraudulently conceals the testator's death from the testator's brother until after probate is closed—the brother may sue for IIE.

🧷 Four elements of IIE

Expectancy: The plaintiff had an expectancy of inheritance (e.g., named in a prior will or an heir at law).
Intentional interference through tortious conduct: The defendant committed a tort (fraud, duress, undue influence) that deprived the plaintiff of the inheritance.
Causation: The defendant's actions caused the plaintiff to lose the expected inheritance.
Damages: The plaintiff suffered damages (loss of the inheritance).

🧷 Exhaustion of probate remedies

Generally, the plaintiff must exhaust probate remedies before filing an IIE claim.
Exception: If the defendant's fraud is not discovered until after probate, or if the defendant's fraudulent conduct prevented the plaintiff from contesting the will in probate court, the plaintiff may file an IIE claim.
Example: In Schilling, the defendant did not notify the plaintiff of the testator's death until after probate was closed; the court held the plaintiff could sue for IIE because the defendant's fraud prevented the plaintiff from contesting the will in probate.

🧷 Two types of fraud in IIE

Fraud in procuring the will: The defendant used undue influence or fraud to procure the will (this alone is usually barred by the exhaustion rule).
Fraud in preventing the will contest: The defendant's actions prevented the plaintiff from contesting the will in probate court (this falls outside the exhaustion rule).

Example: In Schilling, the plaintiff alleged both types of fraud—the defendant procured the will through undue influence, and the defendant fraudulently concealed the testator's death to prevent the plaintiff from contesting the will.

🧷 Why IIE is controversial

Courts are reluctant to recognize IIE because probate codes typically state that the exclusive means of challenging a will is a will contest in probate court.
Some courts reason that IIE is unnecessary because the plaintiff can achieve the same outcome by filing a will contest.
However, IIE may be the only remedy when the plaintiff is prevented from accessing probate court (e.g., by fraud or concealment).

🧷 Limitations of IIE

IIE cannot be invoked if the challenge is based on the testator's lack of mental capacity or an insane delusion (these must be raised in probate court).
IIE is only available when the defendant committed an independent tort (fraud, duress, undue influence) directed at the testator.

🧩 Key cases and their lessons

🧩 Noblin v. Burgess (presumption of undue influence)

Facts: Testator executed a will hours before death, leaving everything to stepchildren; will was executed in hospital with disinterested witnesses; stepchildren attended to testator during final days.
Issue: Did the proponents overcome the presumption of undue influence?
Holding: Yes—the proponents showed good faith (testator initiated, open execution, no fee paid), full knowledge and deliberation (testator was independent, managed own finances), and independent consent (disinterested nurse verified testator's intent).
Lesson: Even if a presumption arises, the proponent can overcome it with strong evidence of the testator's independence and the fairness of the process.

🧩 Saucier v. Tatum (confidential relationship)

Facts: Testator (an alcoholic) executed a will leaving everything to his girlfriend, who provided care, transportation, and located the will form; testator was physically weak but mentally competent.
Issue: Did a confidential relationship exist, and did the girlfriend overcome the presumption of undue influence?
Holding: Yes, a confidential relationship existed (girlfriend provided care, close relationship, transportation, testator was physically weak); yes, the girlfriend overcame the presumption (disinterested bank witnesses testified testator was competent and acting on his own wishes).
Lesson: A confidential relationship can exist even if the testator is mentally competent; the key is dependency and the opportunity to influence.

🧩 Schoppe (undue influence without presumption)

Facts: Testator's son Berwin cared for him for years; daughter Brenda allegedly convinced testator to file a false abuse petition against Berwin, then changed the will to disinherit Berwin.
Issue: Did the jury have sufficient evidence to find undue influence?
Holding: Yes—the testator was susceptible (mental decline after stroke), Brenda had opportunity (became primary caretaker after no-contact order), Brenda had disposition (strong dislike for Berwin, prompted false abuse petition), and the result was unnatural (marked change from prior will).
Lesson: Circumstantial evidence can establish undue influence if it shows susceptibility, opportunity, disposition, and an unnatural result; the jury weighs credibility.

🧩 Rosasco (duress)

Facts: Proponent struck the testator's niece in the testator's presence in 1997; testator later told the niece, "If I change my will, he'll hurt me"; testator executed a will leaving everything to proponent.
Issue: Did the contestant establish a prima facie case for duress?
Holding: Yes—past violence posed a threat of repeated violence, which induced fear in the testator and precluded the testator from exercising free will.
Lesson: Duress can be proven by showing a past wrongful act that implies a threat of repetition, which induced subjective fear in the testator.

🧩 Schilling v. Herrera (IIE)

Facts: Testator's caretaker procured a will in her favor, then did not notify the testator's brother of the testator's death until after probate was closed.
Issue: Was the brother barred from filing an IIE claim because he failed to exhaust probate remedies?
Holding: No—the caretaker's fraud in concealing the death prevented the brother from contesting the will in probate court, so the exhaustion rule does not apply.
Lesson: IIE is available when the defendant's fraud prevents the plaintiff from accessing probate court; the tort protects the testator's right to dispose of property freely.

Note: The excerpt contains hypothetical problems and class discussion tools that are incomplete or lack substantive analysis; these have been omitted from the notes. The focus is on the legal doctrines, elements, and case law presented in the chapter.

Chapter Eleven: Attested Wills

🧭 Overview

🧠 One-sentence thesis

Attested wills must comply with strict statutory formalities—including a writing, the testator's signature, and attestation by competent witnesses—and can be revoked by subsequent writing, physical act, or changed family circumstances, with courts sometimes applying doctrines like dependent relative revocation to preserve testamentary intent.

📌 Key points (3–5)

Core execution requirements: A valid attested will requires (1) a writing, (2) the testator's signature (or acknowledgment), and (3) attestation by the statutorily required number of competent, disinterested witnesses.
Presence requirement variations: Jurisdictions apply either a "line of sight" test (witnesses must be able to see the testator sign) or a "conscious presence" test (testator comprehends through any sense that witnesses are signing).
Revocation methods: Wills can be revoked by (1) subsequent writing executed with testamentary formalities, (2) physical act with intent to revoke (burning, tearing, canceling), or (3) operation of law (divorce, marriage, birth of children).
Common confusion—interested witnesses: A will witnessed by a beneficiary is not automatically invalid; if enough disinterested witnesses exist, the will stands, though the interested witness may forfeit their bequest.
Dependent relative revocation (DRR): Courts may disregard an apparent revocation if the testator acted under a mistaken assumption of law or fact and would not have revoked the will had they known the truth.

📝 Execution formalities

✍️ Writing requirement

Writing requirement: The will must be in a tangible, recorded form that provides evidence of the testator's intentions.

Purpose: Evidentiary—at probate, the testator cannot be questioned, so a written document is the best proof of intent.
Traditional scope: Historically meant paper documents signed in ink.
Modern evolution: Some states (e.g., Nevada) now permit electronic wills with specific safeguards:
- Must be in electronic record with testator's electronic signature
- Must include authentication characteristic (fingerprint, retinal scan, voice recognition)
- Only one authoritative copy must exist, maintained by testator or designated custodian
- Alterations must be readily identifiable
Don't confuse: A video recording alone typically does not satisfy the writing requirement under common law, even if witnessed, because it lacks the permanence and verifiability of a written document.

Example: Gordon records a video will on his iPhone, has three witnesses appear on camera, removes the SIM card, seals it in an envelope, signs the seal, and mails it to his lawyer. Under common law, this likely fails the writing requirement because the video itself is not a "writing." Under Nevada's electronic will statute, it might qualify if it meets all technical requirements (authentication characteristic, authoritative copy maintenance, etc.).

🖊️ Testator's signature

Signature: The testator must sign the will, or have another person sign at the testator's direction and in their presence, in a manner manifesting intent to authenticate the document.

What qualifies as a signature:
- Full legal name is preferred but not required
- Marks, crosses, abbreviations, nicknames, or initials can suffice
- Computer-generated signatures have been accepted (Taylor v. Holt)
- The key is intent to authenticate—the mark must be made with the purpose of executing the will
Assisted signing: A third party may physically assist the testator (e.g., steadying a trembling hand) if:
- The testator requests or acquiesces to the assistance
- The signing remains the testator's act, not controlled by the assistant
- The testator adopts and intends the signature
Subscription requirement: Some states require the signature to appear at the end of the will to prevent additions after signing.

Example: T, suffering from Parkinson's disease, attempts to sign but tremors make it difficult. Witness A grabs T's hand and holds it steady so T can sign. This is valid assisted signing because T is performing the act and A is merely providing physical support, not controlling the hand movement (Matter of Bernatowicz).

Don't confuse: Assisted signing (valid if testator controls the act) vs. controlled signing (invalid if the assistant moves the testator's hand). The test is whether "the act of signing was in any degree an act of the testator, acquiesced in and adopted by him."

👥 Witness requirements

👁️ Presence—line of sight test

Line of sight test: The testator is in the presence of witnesses if they are capable of seeing one another during the signing, regardless of whether they actually observe the act.

Standard: Witnesses must have the opportunity to see the testator sign, not necessarily actually see it.
Application: The testator must be positioned so that witnesses could see the signing without significant effort or change of position.
Strict interpretation: Physical barriers that prevent visual observation typically defeat this test.

Example: In Walker v. Walker, the testatrix remained in a car about 35 feet from a house. Witnesses signed inside the living room. Even though one witness testified the testatrix was "looking at" her through the window, the court held this insufficient because the testatrix could not see "the very act of attestation, the will, the witnesses and their act" from her position. The will failed for lack of proper attestation.

🧠 Presence—conscious presence test

Conscious presence test: Witnesses are in the testator's presence if the testator, through sight, hearing, or general consciousness, comprehends that witnesses are signing, even if the testator cannot see them.

Broader standard: Focuses on the testator's awareness rather than visual observation alone.
Requirements (Whitacre v. Crowe):
1. Witnesses must be within the testator's range of vision, OR
2. The testator must hear and understand that witnesses are subscribing and attesting at the time they do so
3. The signing must constitute one continuous transaction
Rationale: Prevents fraud by ensuring the testator knows witnesses are attesting their will, not another document.

Example: Kay, bedridden upstairs, signs her will. Witnesses sign downstairs in the living room. One witness avers that "voices and sounds were clearly audible" to Kay and she "could hear our movements." The court held this insufficient because there was no evidence Kay understood the substance of conversations or knew witnesses were signing her will at that moment—mere ability to hear general sounds is not enough.

Don't confuse: Hearing sounds vs. understanding the act. The testator must comprehend that witnesses are specifically attesting the will, not just be aware of general activity nearby.

✅ Competent and disinterested witnesses

Competent witness: A person of legal age (typically 18+) and sound mind who can testify to the will's execution.

Disinterested witness: A witness who receives no beneficial interest under the will, either directly or indirectly.

General rule: A will is not invalid merely because witnessed by an interested party, provided the required number of disinterested witnesses also sign.
Consequence of interested witness: If insufficient disinterested witnesses exist, the interested witness typically forfeits their bequest (or the portion exceeding what they would receive under intestacy).
Purging the devise: Courts void the gift to the interested witness to render them "disinterested," thereby validating the will.

Scenario	Witnesses	Result
Will requires 2 witnesses; signed by 2 disinterested + 1 interested	3 total (2 disinterested)	Valid; interested witness keeps bequest
Will requires 2 witnesses; signed by 1 disinterested + 1 interested	2 total (1 disinterested)	Valid only if interested witness's bequest is purged
Will requires 2 witnesses; signed by 2 interested witnesses	2 total (0 disinterested)	Invalid—insufficient competent witnesses

Example: Maxine's will leaves her estate to Church of the Blessed, witnessed by Richard (neighbor) and Curtis (church pastor). Under A.C.A. § 28-25-102, the will is valid because Richard is disinterested. Curtis forfeits his bequest (the church's devise) unless the will is also attested by two disinterested witnesses. Since only Richard is disinterested, the church's bequest is void, making Curtis "disinterested" and validating the will—but the church receives nothing.

Don't confuse: Validity of the will vs. validity of a particular bequest. An interested witness affects only their own gift, not the entire will, if enough other competent witnesses exist.

🔄 Revocation of wills

📄 Revocation by subsequent writing

Revocation by subsequent writing: A later will or codicil can revoke an earlier will either expressly (stating "I revoke all prior wills") or by inconsistency (making a complete disposition that replaces the prior plan).

Express revocation: Clear statement of intent to revoke (e.g., "I hereby revoke my will dated January 1, 2000").
Implied revocation by inconsistency:
- If the subsequent will makes a complete disposition of the estate → presumed to replace and revoke the prior will entirely
- If the subsequent will makes only a partial disposition → presumed to be a codicil that supplements (not replaces) the prior will
- Inconsistent provisions in the later document revoke corresponding provisions in the earlier will
Codicil: A testamentary instrument that amends, rather than replaces, an existing will.

Example: In 2000, Carmen executes a will: "I leave my entire estate to my cousin, Paige." In 2013, Carmen executes a will: "I leave my entire estate to my brother, Simon." The 2013 will revokes the 2000 will by inconsistency because it makes a complete disposition. Simon takes the entire estate.

Example: In 2000, Carmen executes a will: "I leave my entire estate to Paige." In 2013, Carmen executes a will: "I leave my house to Simon." The 2013 will is a codicil because it disposes of only part of the estate. Simon takes the house; Paige gets the residue.

🔥 Revocation by physical act

Revocation by physical act: The testator (or another at the testator's direction and in their presence) performs an act—burning, tearing, canceling, obliterating, or destroying—with the intent to revoke.

Two essential elements:
1. Physical act: One of the specified destructive acts
2. Intent to revoke (animo revocandi): The testator must intend the act to revoke the will
What constitutes "canceling": Courts require marks or lines that physically affect the written portions of the will, not merely notations on blank spaces or the back of the document.
Attempted vs. effective revocation: Writing "VOID" on the back of a will, without defacing the text itself, is typically insufficient (Thompson v. Royall).

Example: In Thompson v. Royall, Mrs. Kroll wrote on the back of her will's cover: "This will null and void...as a memorandum for another will if I desire to make same." The court held this did not constitute cancellation because it did not physically deface the written text of the will itself—it was merely a notation on a separate page.

Don't confuse: Intent to revoke vs. effective revocation. A testator may intend to revoke but fail to perform an act that legally accomplishes revocation under the statute.

🔍 Presumption of revocation

Presumption of revocation: If a will was last in the testator's possession but cannot be found at death, the law presumes the testator destroyed it with intent to revoke.

Triggering the presumption: Will must be (1) traced to testator's custody and (2) not found after death.
Rebuttable presumption: The proponent of the will can overcome this by proving, by clear and convincing evidence, that the testator did not destroy the will with intent to revoke.
What proponent must prove: Not necessarily what happened to the will, but that the testator did not destroy it intending revocation.
Types of rebuttal evidence:
- Testator's declarations of continued intent to have the will take effect
- Evidence of testator's consistent affection for beneficiaries
- Lack of motive to change testamentary plan
- Evidence that others had access to the will (suggesting possible suppression)

Example: In Edmonds v. Edmonds, James executed a will in 2002 leaving everything to his wife Elizabeth and daughter Kelly, intentionally omitting his son Christopher. The original will could not be found after James's death, but a photocopy was found in his filing cabinet where he kept important papers. The court applied the presumption of revocation but found it rebutted by clear and convincing evidence: James repeatedly told friends he intended to leave everything to Elizabeth and Kelly, expressed no affection for Christopher, and discussed funding his estate plan just weeks before death. The photocopy was admitted to probate.

Don't confuse: Lost will vs. revoked will. A will may be lost or destroyed by someone other than the testator; the presumption addresses only the specific scenario where the testator had possession and the will disappeared.

⚖️ Dependent relative revocation and revival

🔄 Dependent relative revocation (DRR)

Dependent relative revocation: A doctrine that disregards an otherwise valid revocation if the testator acted under a mistaken assumption of law or fact and would not have revoked the will had they known the truth.

Theoretical basis: Courts construct a fiction that the revocation was "conditional" on the truth of the testator's mistaken belief.
When DRR applies:
- Testator revokes Will #1 believing Will #2 is valid
- Will #2 turns out to be invalid (e.g., not properly executed)
- Court presumes testator would prefer Will #1 to intestacy
- Will #1 is given effect despite apparent revocation
Key inquiry: What would the testator have wanted if informed of the true situation?
Limitations: DRR does not apply if:
- The two wills reflect very different dispositive schemes
- Evidence shows testator would have preferred intestacy
- The revocation was deliberate and unconditional, not based on mistake

Example: T revokes her 2000 will (leaving property to Bob) because she mistakenly believes Bob is dead. Bob is actually alive. The court applies DRR and probates the 2000 will because the revocation was based on a mistaken assumption of fact, and T presumably would not have revoked if she knew Bob was alive.

Example: In Kroll v. Nehmer, Ms. Binco executed a 1985 will leaving her estate to certain beneficiaries. In 1990, she wrote "VOID—NEW WILL DRAWN UP 6-28-90" on the 1985 will and executed a new handwritten will with completely different beneficiaries. The 1990 will lacked witness signatures and was invalid. The court refused to apply DRR because the two wills had entirely different dispositive schemes—the 1985 beneficiaries were not mentioned in the 1990 will, showing Ms. Binco intended to disinherit them. Applying DRR would give property to people she clearly wanted to exclude.

Don't confuse: DRR is based on presumed intent, not actual intent. Courts apply it only when the alternative (intestacy) seems less consistent with the testator's probable wishes than the revoked will.

🔁 Revival of revoked wills

Revival: The legal question of whether a previously revoked will becomes effective again when a later will that revoked it is itself revoked.

Scenario: T executes Will #1 (2005), then Will #2 (2006) that revokes Will #1, then revokes Will #2 (2009). Does Will #1 "revive"?
Majority approach: Will #1 is revived if the testator so intends, shown by:
- Circumstances surrounding revocation of Will #2
- Testator's contemporaneous or subsequent declarations
- Other evidence of intent
Minority approach: Will #1 cannot be revived unless:
- Re-executed with testamentary formalities, OR
- Republished by reference in a later duly executed writing
Statutory variations:
- Montana approach: Previous will remains revoked unless "it is evident from the circumstances...or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect"
- Pennsylvania approach: Revocation of later will does not revive earlier will "unless the revocation is in writing and declares the intention...to revive the earlier will, or unless...the earlier will shall be reexecuted"
- Virginia approach: Revival operates "only to the extent that the testator's intent to revive the will or codicil is shown"

Example: In 2001, Madison executes a will leaving her estate to Connie, Mitchell, and Allison. In 2003, she executes a will expressly revoking the 2001 will and leaving her estate to Allison and Thelma. In 2013, Madison writes to her attorney: "I want to revoke the will I wrote in 2003. I like the terms of my 2001 will better. When I die, please let the 2001 will stand." Under the majority/Montana approach, the 2001 will is revived because Madison's letter shows clear intent. Under the Pennsylvania approach, the letter alone is insufficient—the 2001 will must be re-executed or the revocation must be in a writing declaring intent to revive.

👨‍👩‍👧‍👦 Revocation by changed circumstances

💔 Divorce

Revocation by divorce: Statutes in most jurisdictions provide that divorce automatically revokes any provision in the decedent's will in favor of the former spouse.

Statutory operation: Divorce revokes bequests to the ex-spouse by operation of law, without requiring the testator to execute a new will.
Scope: Typically revokes only provisions favoring the spouse, not the entire will.
Rationale: Presumes the testator would not want the ex-spouse to benefit after divorce.
Timing matters: The revocation applies to the relationship status at death, not at will execution.

Example: In Davis v. Aringe, Taylor executed a will leaving his entire estate to Ima Darby (then a friend). Thirteen months later, Taylor married Darby. Two years later, they divorced. Taylor died 19 months after the divorce without changing his will. The court held that under Ark. Stat. Ann. § 60-407, the divorce revoked the bequest to Darby, even though she was named in the will before they married. The statute applies whenever a testator "is divorced" after making a will, regardless of when the beneficiary was named.

Don't confuse: The relevant event is divorce, not marriage. A will executed before marriage to a person is still subject to revocation-by-divorce if the testator later marries and divorces that person.

💍 Marriage (omitted spouse)

Omitted spouse statutes: If a testator marries after executing a will and the will makes no provision for the new spouse, the spouse typically receives an intestate share unless an exception applies.

General rule: Premarital will is partially revoked to give the new spouse their intestate share.
Exceptions (spouse takes nothing if):
1. The will shows the omission was intentional
2. The testator provided for the spouse by transfer outside the will (e.g., life insurance, joint property) with intent that it substitute for a testamentary provision
3. The spouse waived their right (e.g., in a prenuptial agreement)
Burden of proof: The party seeking to deny the spouse's share must show an exception applies, based on the face of the will or clear evidence.
Minority rule: In a few states, marriage entirely revokes a premarital will.

Example: In Estate of Murray, Bonnie executed a will leaving her estate to her three sons from a prior marriage. The will stated: "I am married to Paul Murray and there is no issue of this marriage" and "I have intentionally...omitted to provide for my heirs." Bonnie and Paul divorced, then remarried three days before Bonnie died. The court held the will was revoked as to Paul under Probate Code § 70 because: (1) the general disinheritance clause did not specifically mention Paul as a prospective spouse, and (2) merely naming Paul as her current husband (at the time of execution) did not show intent regarding him as a future spouse after remarriage.

Don't confuse: General disinheritance clauses ("I disinherit all heirs") vs. specific disinheritance. Courts require clear evidence the testator contemplated and intended to exclude the particular spouse, not just a blanket statement.

👶 Omitted (pretermitted) children

Pretermitted child statutes: A child born or adopted after will execution who is not provided for or mentioned receives a statutory share unless the omission was intentional.

UPC approach (§ 2-302):
- If testator had no children when will was executed: Omitted child receives full intestate share (unless will leaves everything to child's other parent who survives)
- If testator had children when will was executed and provided for them: Omitted after-born child shares proportionately with the children provided for in the will
- Exceptions (child takes nothing if):
  1. Omission appears intentional from the will
  2. Testator provided for child by non-probate transfer with intent to substitute for testamentary provision
Rationale: Presumes testator would have provided for child if they had remembered or anticipated the birth.
Proof of intent to disinherit: Must appear from the will itself, construed in light of surrounding circumstances.

Example: In 1997, Gloria executes a will leaving her estate equally to her two sons, Patrick and Tresmal. In 2002, after remarrying, Gloria gives birth to Alonzo. Gloria dies in 2003 without changing her will. Under UPC § 2-302(a)(2), Alonzo is entitled to share in the portion of the estate devised to Patrick and Tresmal. If the estate is $300,000 and the will left it all to the two older sons, Alonzo receives one-third ($100,000), and Patrick and Tresmal each receive one-third ($100,000), with their shares abating ratably.

Example: In Hedlund v. Miner, Leslie executed a will leaving everything to his wife Lois when he had no children but his wife was pregnant. Twenty-two days later, daughter Sandra was born. Leslie died without changing the will. The court held the will did not show intent to disinherit Sandra. The statute required intent to disinherit to "appear by the will," and a simple devise to the wife, without mentioning children, did not sufficiently manifest intent to exclude an expected child. Sandra received her statutory share.

Don't confuse: Testator had no children vs. testator had children when executing the will. The UPC provides different formulas depending on whether other children existed and were provided for at the time of execution.

Testator's situation at will execution	Omitted child's share	Exceptions
No children; will leaves all to spouse	Full intestate share	Unless will devises all/substantially all to child's other parent
Had children; will provided for them	Proportionate share of what was left to other children	If omission appears intentional or child provided for outside will
Had children; will made no provision for any child	Full intestate share (treated as if testator had no children)	Same exceptions

Don't confuse: After-born children vs. living children omitted from the will. Pretermitted child statutes typically apply only to children born or adopted after will execution, not to living children the testator simply chose not to mention.

Note on interpretation: The excerpt contains extensive case law and statutory text. These notes synthesize the core principles, key distinctions, and practical applications without adding facts not present in the source material. Examples are drawn directly from the cases discussed or constructed as generic placeholders consistent with the legal rules described.

Non-Attested Wills

Chapter Twelve: Non-Attested Wills

🧭 Overview

🧠 One-sentence thesis

Holographic and nuncupative wills provide less formal alternatives to traditional attested wills, but courts strictly enforce statutory requirements—particularly that material provisions of holographic wills be in the testator's handwriting—to prevent fraud while balancing the goal of honoring testamentary intent.

📌 Key points (3–5)

Why non-attested wills exist: Traditional will formalities deter people from executing wills, so some jurisdictions permit less formal options like holographic (handwritten) and nuncupative (oral) wills.
Core holographic will requirements: The signature and material provisions must be in the testator's handwriting; about half of U.S. states recognize holographic wills.
Testamentary intent is critical: Courts must determine whether the document was intended to operate as a will at the time of writing, not merely as a future plan or informal note.
Common confusion—preprinted forms: When a testator fills in blanks on a preprinted form, courts apply the "surplusage theory": strike all non-handwritten text and see if the remaining handwriting alone makes sense and shows testamentary intent.
Nuncupative wills are rare and limited: Only a few states allow oral wills, and only for small amounts of personal property in emergency situations where the testator faces imminent death.

📝 What is a holographic will

📝 Definition and recognition

Holographic will: A will that is handwritten by the testator.

To be valid, the will must be written in the testator's handwriting and contain the testator's signature.
The entire will does not need to be handwritten; only the material portions (those showing testamentary intent) must be in the testator's handwriting.
About half of U.S. states recognize holographic wills.
These wills do not require witnesses, making them more convenient for lay persons intimidated by the traditional will process.

📝 Why holographic wills are permitted

Deterrence problem: The formalities required for attested wills (witnesses, signing ceremonies) deter many people from executing wills, leading them to die intestate.
Cost and accessibility: Holographic wills allow people to make their own wills without the expense of legal assistance.
Fraud prevention through handwriting: Requiring material provisions in the testator's handwriting provides protection against forgery, since counterfeiting another's handwriting is exceedingly difficult.

📝 Common challenges

Challenges to holographic wills usually focus on:

Validity of the testator's signature
Inclusion of information not in the testator's handwriting (e.g., preprinted text)
Whether the document shows testamentary intent

🎯 Testamentary intent requirement

🎯 What testamentary intent means

Present intent to make a posthumous gift: The testator must intend for the gift to take effect only after death, but must have a present intent to make that transfer at the time of writing.
"Will speaks at death": The document must be intended to govern distribution of property after the testator dies, not to make a current transfer or merely express future plans.

🎯 Why intent is harder to prove for holographic wills

Unlike attested wills, which involve a formal signing ceremony with lawyers and witnesses, holographic wills may be written on informal surfaces:

Walls, napkins, envelopes, donor cards, letters, or any other surface
The informal nature makes the testamentary character less evident
Courts must examine the document itself and surrounding circumstances to determine if the testator meant it to be a will

🎯 The Kimmel case—letter as will

Facts: Decedent wrote a letter to his sons discussing pork preservation, weather, and then stated: "I have some very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3 Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin Kepp this letter lock it up it may help you out." He mailed the letter and died suddenly the same day.

Court's analysis:

The phrase "if enny thing hapens" is a condition that supports testamentary intent—it states exactly what is expressed in or implied from every will.
The contingency (death) occurred when the testator died suddenly.
Although much of the letter is not dispositive (discussing weather, pork), the portion making gifts dependent on "if enny thing hapens" is testamentary.
The testator told recipients to "Kepp this letter lock it up it may help you out," showing he intended it to be effective in and of itself.

Holding: The letter was a valid holographic will because it showed present testamentary intent conditioned on death.

🎯 Don't confuse: Future intent vs. present testamentary intent

Future intent (not testamentary): "I am not taking action now, but my intention is [to leave my estate to X]" = statement of future plan, not a present will.
Present testamentary intent: "If anything happens [I die], [property] goes to X" = present intent to make a posthumous gift.

Example from Estate of Southworth: Decedent circled a preprinted option stating "I am not taking action now, but my intention is" and wrote "My entire estate is to be left to North Shore Animal League." The court found this showed only future intent, not present testamentary intent at the time of execution.

✍️ Handwriting requirements

✍️ What counts as "handwriting"

Minimum definition: A person placing markings on paper or other writing surface using an implement that inscribes those markings in a manner unique to or characteristic of the writer.

Acceptable:

Cursive or block printing/hand printing
Pencil, ink pen, felt-tip pen, charcoal, crayon, or lipstick
Different portions in different ink

Not acceptable:

Typewriter or other mechanism incapable of unique and individual inscription
Rubber stamps
Filling in blank spaces in preexisting printed matter (unless the handwritten portions alone satisfy requirements)

✍️ The Hand case—block printing vs. cursive

Issue: Must a holographic will be in cursive, or may it be hand printed?

Court's reasoning:

The three purposes of requiring handwriting are:
1. Fraud prevention: Authenticity of printing can be tested just like cursive
2. Testator awareness: Both printing and cursive show the testator knew what they were doing
3. Precise expression: Both methods ensure the testator expressed exactly what they intended
None of these purposes is adversely affected by using block printing instead of cursive
Handwriting encompasses any unique, individual inscription by the testator

Holding: Block printing satisfies the handwriting requirement.

✍️ Signature requirements

Signature: The name of a person written with that person's own hand.

May be in cursive or block lettering
Need have no particular "cast or form"
May be by a mark, initials only, fictitious or assumed name, or a name different from that in the body of the will
Must be what the testator intended as a signature

Example from Kimmel: The testator signed the letter "Father." The court held this was a valid signature because:

It was the method he used to sign all such letters
He mailed it as a finished document
His "intent to execute is apparent"

Placement: The signature may be at the beginning of the document if the testator intended it to be their signature (e.g., In re Siegel's Estate).

📋 Material provisions requirement

📋 What "material provisions" means

Material provisions: Those portions of a holographic will that express the testamentary and donative intent of the testator; provisions that are relevant, consequential, or have a bearing on the effect of the instrument.

Material provisions include:

Specific bequests to particular legatees
Instructions concerning donation of bodily remains
Devise and bequest of the remainder of the estate
Any provision that shows who gets what

Not material (may be printed):

Date or introductory wording
Procedural details (e.g., naming an executor)
Address, letterhead, or other matter not incorporated into the dispositive provisions

📋 The Krueger case—alteration by another person

Facts: A holographic will originally left "Books and Diploma" to niece Doris. After execution, Doris's name was crossed out and "Fred Bieber daughters" was inserted in Fred's handwriting (not the testator's). The testator allegedly directed Fred to make this change.

Issue: Is the bequest still valid when the legatee designation is in someone else's handwriting?

Court's holding:

The bequest of books and diploma to a specific legatee reflects the testator's donative intent and is therefore a material provision.
Insertion of "Fred Bieber daughters" as legatees is relevant and consequential—it changes the effect of the instrument.
Because a material provision is now in Fred's handwriting (not the testator's), the will is invalid under the statute.
The testator did not re-execute the altered will, so it cannot be admitted to probate.

Don't confuse: Immaterial corrections (punctuation, spelling, deleting confusing language) made by others do not invalidate a will, but changes to who receives property are always material.

📋 Why the material provisions rule exists

Purpose	How it works
Prevent fraud	Forging an entire handwritten document is exceedingly difficult; requiring material provisions in the testator's hand ensures authenticity
Ensure testator awareness	Writing out the specifics (vs. filling in blanks) impresses on the testator the significance of what they are doing
Guarantee precise expression	The bother of writing out directives results in reflection and exact verbalization of intent

📄 Preprinted forms and the surplusage theory

📄 The problem with preprinted forms

Internet sites like LegalZoom offer preprinted will forms that testators can fill out.
If these wills are not properly witnessed, they may be submitted to probate as holographic wills.
Courts must determine whether filling in blanks on a preprinted form satisfies holographic will requirements.

📄 The surplusage theory

Surplusage theory: Strike all non-handwritten (preprinted, typed, or written by others) material from the document; if the remaining handwritten portions alone make sense and show testamentary intent, the document may be admitted to probate.

How it works:

Ignore all preprinted language
Read only the testator's handwriting
Ask: Do the handwritten words alone:
- Make sense standing alone?
- Show testamentary intent?
- Identify beneficiaries and property?

If yes: The document may be a valid holographic will.
If no: The document fails because material provisions are not in the testator's handwriting.

📄 The Black case—commercially printed will forms

Facts: Testator wrote her will on three identical, commercially printed one-page will forms. She filled in blanks with her signature, domicile, executor's name, date, and city/state. She struck out or ignored other printed language. She used virtually all remaining space to write detailed testamentary dispositions in her own handwriting.

Court's holding:

The incorporated printed material concerned only "perfunctory procedural matters" and was "patently irrelevant" to the substance—the dispositive provisions.
The issue is not whether one mechanically intends to include printed material, but whether one intends to include it because of its importance or materiality to the testamentary message.
The handwritten portions alone identified the document as a will, identified the testator, and made specific bequests.
Valid holographic will: The printed procedural details did not invalidate the otherwise valid will.

Four key questions from Black:

Was the particular provision relevant to the substance of the will?
Was it essential to the will's validity?
Did the testator intend to incorporate the provision?
Would invalidation defeat the testator's intent?

📄 The Southworth case—donor card

Facts: Decedent returned a charitable donor card to North Shore Animal League. The card had three preprinted options; she circled option (c): "I am not taking action now, but my intention is" and wrote in the blank "My entire estate is to be left to North Shore Animal League." She also wrote "$500,000" in another blank and placed an "x" next to food and spaying options. She signed and dated the card.

Court's analysis:

Not a commercially printed will form: The donor card was drafted to inform the charity of future plans, not to serve as a will.
Applying surplusage theory: Eliminate all preprinted words. The handwritten portions alone state only:
- Names, addresses, dollar amounts, and checkmarks
- These are unintelligible without the preprinted verbs, punctuation, directions, and testamentary language
No present testamentary intent: The material printed words "I am not taking action now, but my intention is" show future intent, not present testamentary intent.
Extrinsic evidence (letters, other documents) may show the decedent desired to leave her estate to NSAL, but evidence of present testamentary intent provided by the instrument itself is paramount.

Holding: The donor card is not a valid holographic will because:

Material provisions are not in the testator's handwriting
The handwritten portions alone are unintelligible
The document shows only future intent, not present testamentary intent

📄 The Ferree case—filling in blanks

Facts: Decedent filled in blanks on a preprinted will form. When all preprinted material is removed, only the following handwritten text remains: names, addresses, and the date—no verbs, no dispositive language, no testamentary intent.

Court's holding:

The Legislature adopted the Uniform Probate Code's holographic will provision, which states: "A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwriting portion could evidence the testator's will."
Applying the surplusage theory: All preprinted material must be ignored.
The handwritten portions standing alone mean nothing—they require the preprinted verbs, punctuation, directions, and testamentary language to have any meaning.
Material language necessary to reveal testamentary intent is not in the decedent's handwriting.

Holding: The document cannot be admitted to probate as a holographic will.

📄 Don't confuse: Letterhead vs. substantive provisions

Situation	Result	Reason
Handwritten will on hotel stationery with preprinted "Hotel Covell, Modesto, California"	Valid	Letterhead is not material to testamentary provisions
Handwritten will on stationery with preprinted "In the name of God, Amen"	Valid	Introductory words are not material provisions
Handwritten will using preprinted "19" to complete date "May 3, 19 38"	Valid	Date is not a material provision (in most jurisdictions)
Filling in blanks on preprinted will form where handwritten portions alone are unintelligible	Invalid	Material provisions (dispositive language) are not in testator's handwriting

🚨 Nuncupative (oral) wills

🚨 What nuncupative wills are

Nuncupative will: An oral will, valid only for disposition of personal property worth less than a specified amount, made in emergency situations.

Characteristics:

Function as temporary wills for emergencies
Circumstances must prevent the testator from executing a traditional will
Must be reduced to writing to be probated
Only a few states permit them

🚨 Tennessee statute requirements

Under T.C.A. § 32-1-106, a nuncupative will may be made only by a person in imminent peril of death and is valid only if the testator died as a result of the impending peril. It must be:

Declared to be the testator's will before two disinterested witnesses
Reduced to writing by or under the direction of one witness within 30 days after the declaration
Submitted for probate within 6 months after the testator's death

Limitations:

May dispose of personal property only
Aggregate value not exceeding $1,000 (general)
Exception: Persons in active military service in wartime may dispose of up to $10,000
A nuncupative will neither revokes nor changes an existing written will

🚨 Key requirements explained

Imminent peril of death:

The testator must face immediate danger of death from illness or otherwise
The testator must actually die as a result of that peril
Example: Trapped under a tractor, shot by a sniper, bitten by a poisonous snake

Two disinterested witnesses:

The testator must declare the will in the presence of at least two witnesses
Witnesses must have no interest in the estate (not beneficiaries)

Timely reduction to writing:

One of the witnesses must write down the oral will within 30 days
The writing must accurately reflect what the testator said

Timely probate:

The written document must be submitted for probate within 6 months of death

🚨 Don't confuse: Emergency vs. planned

Valid nuncupative will scenario: Soldier shot in combat tells friend "I want Nina to have the $8,000 in my savings account" and dies moments later = imminent peril, actual death from that peril.
Invalid scenario: Patient scheduled for surgery with 35% survival chance tells nurses his wishes before surgery = not imminent peril at the moment of declaration (surgery is planned, not an emergency).

🚨 Personal property limitation

Nuncupative wills can dispose of personal property only (not real estate)
The aggregate value is capped at $1,000 (or $10,000 for military in wartime)
Example: "I want my sister to have the $20,000 in my account" = exceeds the $1,000 limit, invalid
Example: "I want my friend to have the $8,000 in my savings account" (military in wartime) = within $10,000 limit, valid

Chapter Thirteen: Additional Doctrines Impacting Wills

🧭 Overview

🧠 One-sentence thesis

Several doctrines—integration, incorporation by reference, republication by codicil, and acts of independent significance—allow courts to give effect to a testator's intent by considering documents and facts outside the four corners of a formally executed will, but only when strict requirements are met to prevent fraud and ensure compliance with the Wills Act.

📌 Key points (3–5)

Incorporation by reference allows an external document to become part of a will if: (1) it existed when the will was executed, (2) the will describes it sufficiently, and (3) the testator intended to incorporate it.
Integration concerns whether multiple physical pages present at execution together constitute the will itself, while incorporation by reference involves a separate, independent document.
Republication by codicil treats a will as if executed on the date of the most recent codicil, which can cure defects in incorporation by reference if a document came into existence between the will and codicil.
Acts of independent significance permits reference to external facts or events (e.g., "the house I am living in") only when those acts have a nontestamentary, real-world purpose beyond controlling the will's dispositions.
Common confusion: These doctrines overlap and are often conflated; the key distinctions turn on timing (when the document existed), intent (whether it is part of the will or merely referenced), and motive (testamentary vs. nontestamentary purpose).

📄 Incorporation by Reference

📄 What incorporation by reference means

Incorporation by reference: A doctrine allowing a will to incorporate an external document—not executed with testamentary formalities—into the will itself, making it part of the will for probate purposes.

The external document does not need to be signed, witnessed, or testamentary in form.
It becomes part of the will "as completely as if copied therein."
Purpose: To honor the testator's intent while guarding against fraud by requiring strict proof.

🔑 Three mandatory requirements

For a document to be incorporated by reference, three elements must be satisfied:

Requirement	Explanation
1. Existence at execution	The document must have been in existence at the time the will was executed.
2. Sufficient description	The will must describe the document clearly enough to identify it.
3. Intent to incorporate	The will must show the testator intended the document to be part of the will.

All three must be proven; failure of any one element defeats incorporation.
The burden of proof is on the party seeking to incorporate the document.

⏰ Existence at execution: the critical timing rule

The document must exist when the will is signed.
If any part of the document is added or changed after execution, incorporation fails.
Why this matters: Allowing post-execution changes would let testators bypass the Wills Act formalities (signature, witnesses) and open the door to fraud.

Example from Cyfers v. Cyfers:

Testator executed a will on August 15, 2006, referencing "Exhibit A" for bequests.
Exhibit A contained handwritten notations in different inks and a date of November 29, 2006 (nearly four months after the will).
The attorney testified he gave the testator a blank form to fill out, but could not prove what was written on Exhibit A on the date of execution.
Outcome: The court held Exhibit A could not be incorporated because there was insufficient evidence it existed in its final form at execution; at least some bequests were added later.

Example from Triplett (cited in Cyfers):

A holographic exhibit Y (dated December 11, 1929) referred to changes in a third bequest.
Exhibit X (the rewritten will) was still being drafted; the decedent died March 6, 1930.
The court could not determine how much of exhibit X existed on December 11, 1929.
Outcome: Incorporation failed because the document's existence at the critical date could not be proven.

Don't confuse: A document that is partially complete at execution but later modified cannot be incorporated, even if some of it existed earlier. The entire document as presented for probate must have existed at execution.

📝 Description and intent: identifying the document

The will must describe the external document with enough detail to identify it.
The will must manifest an intent that the document be part of the will.
Courts look at the language of the will and surrounding circumstances.

Example from Clark v. Greenhalge:

Testator's 1977 will stated she would leave tangible personal property "as I may designate by a memorandum left by me and known to [executor], or in accordance with my known wishes."
A 1972 memorandum was clearly incorporated (dated, signed, in existence).
A plastic-covered notebook titled "List to be given Helen Nesmith 1979" contained an entry: "Ginny Clark farm picture hanging over fireplace."
The notebook was in existence when two codicils were executed in 1980 (which ratified the will).
Outcome: The court held the notebook qualified as "a memorandum" under the will's language; the term "a memorandum" was not limited to a single document or a document formally titled "memorandum." The notebook's purpose matched the will's intent to guide distribution of tangible personal property.

Don't confuse: The document does not need to be labeled "memorandum" or "exhibit" if its purpose and the testator's intent are clear from the will's language and context.

🛡️ Policy: protecting against fraud

The existence requirement prevents testators from making unwitnessed, post-execution changes.
If a testator could incorporate a future document, they could "create for himself a power to dispose of his property by an instrument not executed in accordance with the statute of wills, and open the door to fraudulent imposition."
Courts strictly enforce the requirements to preserve the integrity of the testamentary process.

🧩 Integration

🧩 What integration means

Integration: The doctrine that determines which physical pages or sheets of paper, present at the time of execution, constitute the will itself.

Integration applies when there is no reference to a separate, extraneous document; instead, multiple writings are intended to be the will.
The question is whether loose or unattached pages were part of the will at execution.

🔗 Two requirements for integration

Requirement	Explanation
1. Physical presence at execution	The pages must have been present when the will was signed and witnessed.
2. Intent to be part of the will	The testator must have intended the pages to be part of the will.

Courts look for physical connection (stapled, clipped, folded together) and continuity of thought or language.

Example from In re Morrison's Estate:

Testator executed a signed and witnessed sheet on April 9, 1949, stating: "I mean for all of this to be in my 'Will'... to help these people."
A second sheet listed names and monetary amounts in the testator's handwriting.
Both sheets were placed in a sealed envelope together and delivered to the bank.
Witnesses saw the testator put both sheets in the envelope; the testator said "something for Hanck and the nurse," whose names appeared on the second sheet.
Outcome: The court applied integration (not incorporation by reference) and held both sheets constituted a holographic codicil. The two writings were "connected by sequence of thought" and "plainly indicate that they were both intended by the testator to constitute a codicil to his will."

🔍 Integration vs. incorporation by reference

Integration	Incorporation by Reference
Multiple writings together form the will itself.	A separate, independent document is made part of the will by reference.
The writings are testamentary in nature.	The external document may be nontestamentary (e.g., a list, a deed).
All pages must be present at execution.	The external document must exist at execution but need not be physically attached.
Focus: physical presence and continuity.	Focus: description, intent, and existence.

Don't confuse: If a testator signs a multi-page will with all pages present, that is integration. If the will says "I incorporate the list in my desk drawer," that is incorporation by reference (and the list must have existed at execution).

🔄 Republication by Codicil

🔄 What republication by codicil means

Republication by codicil: A validly executed codicil treats the will as if it were executed on the date of the codicil, unless doing so would contradict the testator's intent.

A codicil is a supplement or addition to a will.
Even if labeled a "will," a document is a codicil if it does not make a complete disposition of the testator's property.
The codicil "republishes" the will, giving it a new effective date.

⚙️ How republication works

When a codicil is executed, the law treats the will as if executed on the codicil's date.
This can cure defects in incorporation by reference if a document came into existence between the will and the codicil.

Example:

July 8, 2014: Testator executes a will stating, "I incorporate the items in my journal."
August 10, 2014: Testator writes the journal.
September 15, 2014: Testator executes a codicil leaving $50,000 to a granddaughter.
Result: The will is republished on September 15, 2014. The journal existed on that date, so it can be incorporated by reference.

Without the codicil:

The journal did not exist on July 8, 2014, so incorporation would fail.

🚫 Limits of republication

A codicil cannot republish a will that was never validly executed in the first place.
If the original will lacked required witnesses or was void, the codicil cannot cure that defect.

Example:

November 23, 2014: Devon signs a will in front of one witness (jurisdiction requires two).
November 30, 2014: Devon executes a valid codicil.
Result: The will was never validly executed, so it cannot be republished. Devon dies intestate.

Don't confuse: Republication can cure timing problems (e.g., a document that came into existence after the will but before the codicil), but it cannot cure execution defects (e.g., missing witnesses).

🔗 Interaction with incorporation by reference

Republication by codicil is most useful when a testator wants to incorporate a document created after the will but before the codicil.
The codicil must ratify or reference the will's language for republication to apply.

🎯 Acts of Independent Significance

🎯 What acts of independent significance means

Acts of independent significance: A doctrine permitting a will to refer to external acts, events, or facts that have significance apart from their effect on the will, even if those acts occur after the will is executed.

The key question: Does the act have a real-world, nontestamentary purpose, or is it purely a device to change the will without formalities?
If the act has independent significance, the will's reference to it is valid.

✅ Valid references: nontestamentary motives

A will may refer to:
- "The house I am living in at my death."
- "The contents of my jewelry box."
- "My employees at the time of my death."
These references are valid because the testator's actions (buying a new house, acquiring jewelry, hiring employees) have purposes beyond controlling the will.

Example:

Testator's will: "I leave the house I am living in at my death to Maxine."
At execution, the house is worth $200,000.
Testator's daughter and grandchildren move in, so testator buys a bigger house worth $400,000.
Result: The new house passes to Maxine. The testator's motive was to accommodate family, not to increase Maxine's bequest. The act (buying a house) has independent significance.

❌ Invalid references: purely testamentary motives

If the act's only purpose is to change the will's dispositions, it is invalid.
The testator cannot use external acts to bypass the Wills Act.

Example:

Testator's will: "I leave the house I am living in at my death to Maxine."
Testator buys a more expensive house solely to increase Maxine's bequest.
Result: The court will not permit this. The act lacks independent significance; it is purely testamentary.

Example from Clark v. Citizens Nat. Bank:

Testator's will left the residue to a trustee "under and subject to the terms and provisions of a certain agreement of trust... bearing even date herewith."
The trust agreement was not delivered to the trustee until two days after the will was executed.
Outcome: The court held the trust agreement had no independent significance. Its only purpose was to dispose of property by will. The gift failed because the trust did not exist at the will's execution, and the doctrine of acts of independent significance did not apply.

🧪 The test: independent vs. testamentary purpose

Scenario	Independent Significance?
"My employees at death" (hiring/firing for business reasons)	✅ Yes
"Persons named in my unattested memo" (memo has no purpose but to list beneficiaries)	❌ No
"Contents of my jewelry box" (acquiring jewelry for personal use)	✅ Yes
"Items I mark with a red sticker" (marking solely to designate bequests)	❌ No

Don't confuse: The doctrine allows reference to facts that change over time (e.g., which house, which employees), but only if those facts have real-world significance beyond the will.

🔀 Distinguishing the Doctrines

🔀 How to tell them apart

These doctrines are closely related and often confused. The key is to focus on what the testator is trying to do and when the relevant document or fact came into existence.

Doctrine	What it does	Key requirement	Example
Integration	Determines which pages present at execution are part of the will.	Pages must be physically present and intended as part of the will.	Multi-page will, all pages signed or stapled together.
Incorporation by reference	Makes an external document part of the will.	Document must exist at execution, be described, and be intended to be incorporated.	Will says "I incorporate the list in my Bible"; list existed at execution.
Republication by codicil	Treats the will as executed on the codicil's date.	A valid codicil must be executed.	Codicil allows incorporation of a document created after the will but before the codicil.
Acts of independent significance	Allows reference to external facts or events.	The facts must have nontestamentary significance.	"The house I live in" (buying a house has independent purpose).

🧭 Common confusion: integration vs. incorporation

Integration: "Are these loose pages part of the will?"
- Look for: physical presence, continuity of thought, stapling/clipping.
Incorporation by reference: "Can this separate document become part of the will?"
- Look for: existence at execution, description in the will, intent to incorporate.

Example from Walsh v. St. Joseph's Home:

Testator's will: "All U.S. Savings Bonds in safety deposit box... to be given to the people and places as marked."
Envelopes and slips with handwritten notations were found in the box, but they were undated or dated after the will.
Outcome: The court held the writings could not be integrated (they were not part of the will itself) or incorporated by reference (they did not exist at execution). The doctrine of acts of independent significance did not apply because the writings had no purpose other than making testamentary gifts.

🧭 Common confusion: incorporation vs. acts of independent significance

Incorporation by reference: The external document becomes part of the will; it must exist at execution.
Acts of independent significance: The will refers to facts or events that may change after execution, but those facts must have real-world significance.

Example:

"I leave the contents of my safe deposit box to X."
- This is acts of independent significance (the contents may change, but the testator uses the box for nontestamentary reasons).
"I leave the items listed in my memo to X."
- This is incorporation by reference (the memo must exist at execution and be described in the will).

📜 Contracts Relating to Wills

📜 What contracts relating to wills are

A person may promise to make a will, not to revoke a will, or to leave property to someone.
These promises are governed by contract law, not the law of wills.
Even if a valid contract exists, the will is probated according to its terms; the contract beneficiary seeks damages or a constructive trust.

📝 Contract to make a will

Contract to make a will: An enforceable agreement in which a person promises to execute a will with certain terms in exchange for consideration.

Modern rule (UPC § 2-514): A contract to make a will must be established by:
1. Provisions in the will stating the contract's material terms, or
2. An express reference in the will to a contract plus extrinsic evidence, or
3. A writing signed by the decedent evidencing the contract.
Oral contracts to make a will are generally invalid under modern statutes (e.g., OCGA § 53-4-30, effective January 1, 1998).

Example from Newton v. Lawson:

Newton claimed Syble Lawson promised to leave him a life estate in her house and other property in exchange for his care.
Newton pointed to a 2000 will and handwritten notes as evidence of the contract.
Outcome: The court held neither the will nor the notes constituted a signed written contract. The will was simply a revocable testamentary instrument, not a binding promise. The notes were unsigned. Newton could not prove a written contract as required by statute.

🚫 What a will alone cannot prove

A will, even if it matches the alleged contract terms, is not itself a contract.
A will is revocable; it does not bind the testator to its terms.
The will must contain language indicating a contractual obligation, or there must be a separate signed writing.

Don't confuse: A will that says "I leave X to Y" is not a contract. A will that says "In consideration of Y's services, I agree to leave X to Y" may evidence a contract (if signed and meeting statutory requirements).

🤝 Contract not to revoke a will

Married couples often execute joint wills (one document for both) or mutual wills (separate wills with reciprocal provisions).
No presumption of contract: Executing a joint or mutual will does not create a presumption that the survivor promised not to revoke.
A contract not to revoke must be proven by clear and convincing evidence.

Example:

A and B execute a joint will: "When A dies, everything to B; when B dies, everything to C."
A dies; the will is probated, and B inherits.
B remarries D and executes a new will leaving everything to D.
Result: C has no recourse unless B promised not to revoke the joint will. Absent proof of a contract, B is free to revoke.

⚖️ Remedies for breach

If a valid contract is proven and the testator breaches it (by revoking the will or executing a different will), the contract beneficiary may seek:
- Damages (the value of the promised bequest), or
- Constructive trust (imposed on the estate or the property that should have passed under the contract).
The will is still probated as written; the contract claim is a separate action.

🛡️ Policy: why strict requirements

Contracts to make wills are disfavored because they undermine the principle that wills are revocable.
Strict requirements (writing, signature) protect against fraud and false claims after the testator's death.
Courts require clear proof to prevent disappointed heirs from fabricating oral promises.

Summary of key takeaways:

Incorporation by reference: External document must exist at execution, be described, and be intended as part of the will.
Integration: Multiple pages present at execution together form the will.
Republication by codicil: A codicil gives the will a new effective date, curing timing defects in incorporation.
Acts of independent significance: External facts may be referenced if they have nontestamentary significance.
Contracts relating to wills: Must be in writing and signed (under modern statutes); a will alone is not a contract.
Common pitfall: Confusing these doctrines. Always ask: (1) When did the document/fact come into existence? (2) What was the testator's intent? (3) Does the act have independent significance?

Chapter Fourteen: Mistakes and Curative Doctrines

🧭 Overview

🧠 One-sentence thesis

Courts may either strictly enforce statutory formalities for will execution—thereby invalidating defective wills even when testamentary intent is clear—or apply curative doctrines (substantial compliance and harmless error) to honor the testator's intent despite technical failures.

📌 Key points (3–5)

Two types of mistakes: drafting errors (wrong content) and execution errors (failure to follow statutory formalities like witnessing or signing).
Strict compliance vs. curative doctrines: strict compliance voids any will that deviates from statutory requirements; substantial compliance and harmless error doctrines excuse defects when testamentary intent is proven.
Common confusion: substantial compliance applies when the testator tried to comply but made a mistake; harmless error (dispensing power) applies even when the testator did not attempt to comply.
Burden of proof: curative doctrines require clear and convincing evidence that the document reflects the testator's final intent.
Policy tension: formalities prevent fraud and ensure reliability, but rigid enforcement can frustrate genuine testamentary intent.

📝 Drafting errors and reformation

📝 What drafting errors are

Drafting errors: mistakes in the content of a will that cause property to be distributed in a way inconsistent with what the testator intended.

These are not execution mistakes (like missing a witness signature); they are substantive mistakes in the text itself.
Example: A will names "Robert J. Krause, 4708 North 46th Street" when the testator actually knew and intended to benefit "Robert Krause, 2325 North Sherman Boulevard."
The testator is deceased and cannot clarify, so courts must decide whether to fix the mistake or enforce the plain language.

🚫 Traditional rule: no reformation

Courts historically refused to reform (rewrite) wills, even for obvious mistakes.
Rationale: the testator is not present to confirm intent; allowing reformation invites fraud and false claims by disappointed heirs.
One court stated: "Courts have no power to reform wills. Hypothetical or imaginary mistakes of testators cannot be corrected. Omissions cannot be supplied."

🔍 Latent ambiguity exception

Courts will consider extrinsic evidence (testimony, facts outside the will) if there is a latent ambiguity.
Two types of latent ambiguity:
1. Perfect fit ambiguity: two or more persons/things exactly match the description (e.g., "Robert Krause of Milwaukee" when multiple Robert Krauses live there).
2. Imperfect fit ambiguity: no person/thing exactly matches, but two or more partially match (e.g., "my former employee Robert J. Krause of 4708 North 46th Street" when the actual person is Robert Krause, not "J.," and lives elsewhere).
When latent ambiguity exists, courts admit extrinsic evidence to identify whom the testator meant.

⚖️ In re Gibbs's Estate: disregarding mistaken details

Facts: The will left a bequest to "Robert J. Krause, 4708 North 46th Street." The testator knew respondent Robert Krause (no middle initial "J.," lived at 2325 North Sherman Boulevard) for decades as a close employee and friend. Appellant Robert J. Krause lived at the address in the will but had no connection to the testator.
Court's reasoning:
- Extrinsic evidence (testimony, prior wills, handwritten notes) "irresistibly" showed the testator intended respondent, not appellant.
- The middle initial and street address were "highly susceptible to mistake" and should not "frustrate an otherwise clearly demonstrable intent."
- The court disregarded the erroneous details and admitted the will to probate for respondent.
Key principle: Courts may disregard mistaken identification details (initials, addresses) when clear and convincing evidence shows the testator's true intent, treating the error as a latent ambiguity.
Don't confuse: This is not full "reformation" (rewriting the will); it is selectively ignoring mistaken details to effectuate intent.

🔨 Execution errors: strict compliance

🔨 What execution errors are

Execution errors: failures to follow the statutory formalities required for a valid will (e.g., number of witnesses, testator's signature, witnesses' signatures).

Even a perfectly drafted will is invalid if not executed according to the statute.
Example: A statute requires two disinterested witnesses; a will signed by only one witness is invalid under strict compliance.

⚖️ Strict compliance doctrine

Strict compliance: a will that does not strictly comply with every statutory formality is invalid, regardless of evidence that it reflects the testator's intent.

This creates a conclusive presumption of invalidity for imperfectly executed wills.
Rationale: formalities prevent fraud; courts should not second-guess the legislature's requirements.
One court warned: "Once a Court starts to ignore or alter or rewrite or make exceptions to clear, plain and unmistakable provisions of the Wills Act... the door will be opened wide to countless fraudulent claims."

📖 In re Pavlinko's Estate: the wrong-will-signed case

Facts: Husband Vasil and wife Hellen each signed the other's will by mistake. Vasil signed the document titled "Last Will and Testament of Hellen Pavlinko," which left everything to "my husband, Vasil Pavlinko," and named Elias Martin (Hellen's brother) as residuary legatee if Vasil predeceased her. Both wills were identical in structure and named the same residuary legatee.
Majority holding: The will Vasil signed cannot be probated as his will because:
1. It was not signed by him "at the end thereof" as required by statute (it was signed by him, but the text referred to Hellen as testator).
2. To probate it as Vasil's will, "almost the entire will would have to be rewritten."
3. The language as written is "a meaningless nullity" (e.g., "I give my estate to my husband, Vasil Pavlinko").
Dissent (Justice Musmanno): The mistake was innocent and obvious; both wills expressed the same intent (spouse inherits, then Elias Martin). The residuary clause naming Elias Martin is clear and should be enforced. Strict compliance frustrates the testator's intent and "offends against an innate sense of justice."
Key principle: Under strict compliance, even an obvious, harmless mistake voids the will if it fails a statutory requirement.

🧷 Why strict compliance is harsh

It elevates form over substance.
It can defeat clear testamentary intent.
Example: In Pavlinko, everyone agreed the testators wanted Elias Martin to inherit, but the court refused to probate the will.

🛠️ Curative doctrines: substantial compliance

🛠️ What substantial compliance is

Substantial compliance: a defectively executed will may be treated as valid if the defective execution satisfies the purposes of the statutory formalities.

Applies when the testator tried to comply but made a mistake.
Two-part inquiry:
1. Does the document express the decedent's testamentary intent?
2. Does it sufficiently approximate the statutory formalities to serve the purposes of the Wills Act (preventing fraud, ensuring reliability)?
If yes to both, the will may be probated despite the defect.

🎯 Purposes of will formalities

Purpose	What it does
Evidentiary	Provides reliable evidence of the will's terms and the testator's intent (writing, signature).
Protective (ritual)	Impresses the testator with the seriousness of the act; deters hasty decisions.
Channeling	Creates uniformity in wills, making them easier to identify and interpret.
Fraud prevention	Attestation (witnesses) guards against forgery and undue influence.

Substantial compliance asks: did the defective execution still serve these purposes?

⚖️ In re Ranney: witnesses signed the self-proving affidavit, not the will

Facts: Testator Russell signed his four-page will. Two witnesses and a notary then signed a separate fifth page, a "self-proving affidavit," but did not sign the will itself or an attestation clause on the will. The affidavit was later stapled to the will.
Issue: Does signing the self-proving affidavit satisfy the statutory requirement that witnesses sign the will?
Court's reasoning:
- The affidavit and the will are separate documents serving different functions:
  - Attestation clause: witnesses express present intent to attest; provides prima facie evidence of due execution.
  - Self-proving affidavit: sworn statement that the will has already been executed; allows probate without live witness testimony.
- The statute contemplates the affidavit as supplemental to a duly executed will, not a substitute for attestation.
- However, under substantial compliance, the will may still be probated if:
  1. The testator signed voluntarily.
  2. The witnesses signed the affidavit intending to attest the will.
  3. They witnessed the testator's signature.
- Here, both witnesses believed they were attesting the will when they signed the affidavit; the execution substantially complied with statutory purposes (preventing fraud, ensuring intent).
Holding: The will substantially complied and was admitted to probate after a hearing in solemn form (formal probate with evidence).
Key principle: Substantial compliance excuses technical defects (like signing in the wrong place) if the execution still serves the statute's protective purposes and clear evidence shows testamentary intent.

🧩 When substantial compliance applies

The testator attempted to comply but made a mistake (e.g., witnesses signed the wrong page).
The defect is "technical" or "formal," not substantive.
The execution still provides reliable evidence of intent and guards against fraud.
Don't confuse: Substantial compliance is not a free pass; the proponent must prove by clear and convincing evidence that the will reflects the testator's intent.

🔓 Curative doctrines: harmless error (dispensing power)

🔓 What harmless error is

Harmless error (dispensing power): a court may excuse noncompliance with statutory formalities if the proponent proves by clear and convincing evidence that the decedent intended the document to be his or her will.

Applies even when the testator did not attempt to comply with formalities.
The court "dispenses with" (waives) the statutory requirements.
Requirements (from the excerpt):
1. The decedent prepared the document or caused it to be prepared.
2. The decedent signed the document (or acknowledged it in some way).
3. The decedent intended the document to constitute his or her will.

🔍 Higher burden for greater defects

The greater the departure from statutory formalities, the harder it is to prove intent.
Example: Missing a witness signature is easier to excuse than a completely unsigned will.
Courts are "extremely reluctant" to excuse noncompliance with the signature requirement, though some jurisdictions allow it.

⚖️ In re Macool (referenced in Ehrlich)

Key holding: Under the harmless error doctrine, a writing need not be signed by the testator to be admitted to probate.
Two-element test for harmless error:
1. The decedent actually reviewed the document.
2. The decedent gave his or her final assent to it.
Without both, a court can only speculate about the decedent's intent.

⚖️ In re Estate of Ehrlich: the unsigned original mailed to the executor

Facts: Decedent, a trust and estates attorney, prepared a detailed 14-page will on his law office letterhead. He did not sign it or have it witnessed. He wrote by hand on the cover page: "Original mailed to H.W. Van Sciver, 5/20/2000" (Van Sciver was named executor in the will). On the same day, decedent executed a power of attorney and living will, both properly witnessed. The original will was never returned; only a copy was found after decedent's death. For years, decedent told friends he had a will and wanted to change one provision (removing a bequest to a former friend), but he never did.
Issue: Can an unsigned copy of a will be admitted to probate under the harmless error doctrine?
Court's reasoning:
1. Decedent reviewed the document: He prepared it himself.
2. Decedent gave final assent: His handwritten notation that he mailed the original to his executor, combined with his repeated oral acknowledgments that he had a will and his expressed intent to modify it, constitute clear and convincing evidence of assent.
3. The will is formal, detailed, and disposes of the entire estate; it expresses testamentary intent.
4. The fact that it is only a copy is not fatal; there is no evidence of alteration or forgery, and the evidence rebuts any presumption of revocation.
Holding: The unsigned copy substantially represents the decedent's final testamentary intent and was properly admitted to probate.
Key principle: Even an unsigned copy may be probated under harmless error if clear and convincing evidence (here, the handwritten note, contemporaneous execution of other documents, and years of oral acknowledgment) shows the decedent intended it as his will.

🧷 Harmless error vs. substantial compliance

Doctrine	When it applies	What the testator did
Substantial compliance	Testator tried to comply but made a mistake	Attempted to follow formalities (e.g., had witnesses, but they signed the wrong page)
Harmless error	Testator did not attempt to comply	Did not follow formalities at all (e.g., no witnesses, or unsigned will)

Both require clear and convincing evidence of testamentary intent.
Both serve the same goal: honor intent over form.

⚠️ Limits and cautions

Harmless error is not an "invitation to carelessness or chicanery."
Courts remain cautious, especially with unsigned wills or missing attestation.
The doctrine removes "procedural peccadillos" (minor technical errors), not substantive failures.
Example: In Sky Dancer (mentioned at the end of the excerpt), the court must determine whether a photocopied, partially incomplete document with signatures on a separate affidavit page constitutes the decedent's will—applying harmless error requires examining all the circumstances.

🧭 Policy and modern trends

🧭 Why curative doctrines emerged

Problem with strict compliance: It frustrates testamentary intent and leads to unjust outcomes (e.g., Pavlinko).
Modern view: Formalities are means to an end (proving intent, preventing fraud), not ends in themselves.
Scholars and law reform commissions argue that "mistake should not be allowed to defeat intention."

📜 Legislative and scholarly support

Uniform Probate Code § 2-503 (adopted by many states, including New Jersey and Colorado): explicitly authorizes harmless error.
Restatement (Third) of Property § 3.3: endorses excusing harmless errors; notes that strict compliance has "led to harsh results in many cases."
Commissioners' commentary: The goal is to "retain the intent-serving benefits of formality without inflicting intent-defeating outcomes."

🔄 Shift from formalism to intent

Pre-reform: wills law was "harsh and relentless formalism."
Post-reform: courts and legislatures prioritize the testator's intent.
Example: New Jersey's 1977 Probate Code amendments reduced formalities (e.g., witnesses need not sign in the testator's presence; holographic wills are valid without witnesses).
Legislative history confirms the goal: "prevent technical defects from invalidating otherwise valid wills."

⚖️ Balancing act

Formalities still matter: they provide structure, prevent fraud, and create reliable evidence.
But rigid enforcement can defeat the very purpose of wills (to distribute property according to the testator's wishes).
Curative doctrines strike a balance: require strong proof of intent, but do not void wills for "the most minute defects."

🧩 Practical implications

🧩 For practitioners

Best practice: Strictly comply with all statutory formalities to avoid litigation.
Even under curative doctrines, defects create risk and require expensive probate hearings.
Example: In Ranney, the court required "probate in solemn form" (formal hearing with evidence) rather than routine probate.

🧩 For litigants

Proponent's burden: Must prove by clear and convincing evidence that the document reflects the testator's final intent.
Contestant's strategy: Challenge whether the testator reviewed the document, gave final assent, or whether the execution serves the statute's purposes.
Example: In Ehrlich, contestants argued the will was not "actually signed," but the court found the handwritten notation sufficient evidence of assent.

🧩 Common scenarios

Witnesses sign the wrong page: Substantial compliance may apply if they intended to attest and the execution prevents fraud.
Testator signs the wrong will: Strict compliance likely voids it (Pavlinko), but some courts might apply curative doctrines if intent is clear.
Unsigned will with strong extrinsic evidence: Harmless error may apply if the testator reviewed and assented to the document (Ehrlich).
Copy of a will, original lost: May be probated if evidence rebuts the presumption of revocation and shows testamentary intent.

🧩 Evidentiary considerations

Courts rely heavily on:
- Handwritten notations by the testator.
- Testimony from witnesses, friends, or family about the testator's statements.
- Contemporaneous execution of other documents (e.g., power of attorney).
- The formality and completeness of the document itself.
Don't confuse: Extrinsic evidence is admissible under curative doctrines, but the document itself must still express testamentary intent.

Chapter Fifteen: The Stale Will Problem

🧭 Overview

🧠 One-sentence thesis

When beneficiaries predecease the testator or devised property no longer exists at death, courts apply lapse rules, antilapse statutes, and ademption doctrines to determine whether gifts fail or pass to substitute takers, balancing testamentary intent against formal legal rules.

📌 Key points (3–5)

What "stale will" means: changes in beneficiaries (death, abuse) or property (sale, destruction) between will execution and testator's death create distribution problems.
Lapse vs. antilapse: at common law, a gift to a predeceased beneficiary lapses; antilapse statutes redirect the gift to the deceased beneficiary's descendants if the beneficiary was a specified relative.
Ademption by extinction vs. satisfaction: extinction applies when specifically devised property no longer exists (identity theory ignores intent; intent theory considers it); satisfaction applies when the testator gives the beneficiary property during life that may substitute for a will gift.
Common confusion—class gifts vs. individual gifts: if a gift is to a class, surviving members take the whole; if to named individuals, antilapse may apply to each predeceased member's share.
Exoneration and abatement: exoneration (whether estate pays mortgage on devised property) and abatement (order of reducing gifts when assets are insufficient) address property encumbrances and shortfalls.

🧩 Lapse and the common law default

🧩 The survivorship condition

Lapse: a devise fails if the named beneficiary does not survive the testator.

At common law, every testamentary gift carries an implied condition of survivorship.
If the devisee dies before the testator, the gift "lapses" (fails).
Why it matters: the lapsed gift does not pass to the deceased devisee's heirs; instead it falls into the residue or passes by intestacy.

Example: Ramon leaves half his estate to his son Stanley. Stanley dies before Ramon. Under common law, Stanley's share lapses; Stanley's children take nothing through him.

🔍 What happens to lapsed gifts—specific, general, and residuary

Type of devise	What it is	Where lapsed gift goes
Specific	Precisely described item ("my car to Sam")	Falls into the residue
General	Sum of money ("$100,000 to Gilbert")	Falls into the residue
Residuary	"Rest of my estate"	Passes by intestacy to testator's heirs

Specific and general devises: if they lapse, they augment the residue.
- Example: Claudia leaves her farm (specific) to Frank and $50,000 (general) to Clifford. Both predecease her. The farm and $50,000 go to Leonard, the residuary taker.
Residuary devises: if the residuary beneficiary predeceases, that share passes by intestacy, even if the testator intended otherwise.
- Example: Ronald leaves his house to Hillary and the residue to Bonita. Bonita predeceases. The residue passes to Ronald's intestate heir, Gibson, not to Hillary.

⚠️ "No residue-of-a-residue" rule (minority)

A few states apply this rule: if one of multiple residuary beneficiaries predeceases, that beneficiary's share does not go to the surviving residuary takers; it falls into intestacy.
Example: Freda leaves the residue equally to Molly and Eddie. Eddie predeceases. Under this rule, Eddie's half goes to Freda's intestate heirs (her sisters), not to Molly.
Don't confuse: the majority rule is that the surviving residuary beneficiaries divide the whole residue among themselves.

🎓 Class gifts—survivorship within the class

Class gift: a gift to a group described by relationship (e.g., "my nephews"), not by individual names.

If one class member predeceases, the surviving class members divide the gift.
The deceased member's share does not lapse out of the class.
Example: Tony leaves $100,000 to "my nephews." Two of four nephews predecease. The two survivors split the $100,000.

How to tell class vs. individual gifts:

Class label ("children," "nieces and nephews") → likely a class gift.
Named individuals ("to Anna, Mary, and Helen") → likely individual gifts, unless context shows group-mindedness.
Courts ask: was the testator "group-minded" or did the testator care about specific individuals?

Case illustration—Matter of Seaman: testator left residue "to my step-mother, Alice B. Seaman … and my namesake, Lyle Taylor McClure, equally." Alice predeceased. Court held this was not a class gift (beneficiaries named individually), so Alice's share lapsed and passed by intestacy, not to Lyle.

Case illustration—Matter of Kalouse's Estate: testator left residue "to my first cousins on both my father's and mother's side of my family, and to Frank Nespor, in equal shares." Court held this was a class gift (described by relationship, not named), so predeceased cousins' shares stayed in the class; their descendants did not take.

🛡️ Antilapse statutes—saving gifts for issue

🛡️ What antilapse statutes do

Antilapse statute: a statute that prevents lapse by substituting the deceased beneficiary's descendants (issue) for the deceased beneficiary, if the beneficiary was a specified relative of the testator.

Purpose: carry out presumed intent (testator likely wanted the gift to stay in that family line) and avoid unintended intestacy.
How it works: if a beneficiary who is a grandparent or lineal descendant of a grandparent of the testator (or other specified relative, depending on jurisdiction) predeceases, the beneficiary's issue who survive the testator take in place of the deceased beneficiary.
Example (Minnesota statute): "If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee."

Example: T leaves house to son Solomon and remainder to friend Jacob. Solomon predeceases, survived by son Gino. Jacob predeceases, survived by daughter Dottie. Antilapse applies to Solomon's gift (Gino takes the house) but not to Jacob's gift (Dottie is not related to T as required by statute), so Jacob's gift lapses.

🔍 When the statute is triggered—"predeceases" broadly construed

Physical death before the testator is the typical trigger.
Also triggered when a beneficiary is deemed to predecease (e.g., disclaimer, slayer/abuser statute).
Case—Gianoli v. Gabaccia: statute applies even if the beneficiary died before the will was executed (void gift), not just after (lapsed gift). Rationale: the statute protects the testator's kindred; the timing of death should not matter.
Case—In re Estate of Evans: Washington's abuser statute deems an abuser to predecease the testator. The antilapse statute then applies, so the abuser's children (innocent descendants) take the abuser's share. The abuser statute is not penal; it only disinherits the abuser, not the abuser's line.

⚖️ Testator's contrary intent—defeating the antilapse statute

Antilapse statutes apply unless the will shows a contrary intent.
Burden of proof: the party opposing the statute must show contrary intent clearly.
Three ways to show contrary intent:
1. Express statement: "the antilapse statute shall not apply" (rare).
2. Alternative disposition: "to A, but if A predeceases me, then to B."
3. Words of survivorship: "to A if A survives me" or "to my surviving children."

📝 Words of survivorship—split of authority

Majority (and UPC §2-603(b)(3)): words of survivorship ("if she survives me") are not sufficient to defeat the antilapse statute, absent additional evidence of contrary intent.
- Rationale: survivorship language may be boilerplate; it duplicates the common law lapse rule and does not necessarily show intent to disinherit the beneficiary's line.
- Case—Ruotolo v. Tietjen (Connecticut): will left residue "to Hazel Brennan … if she survives me." Hazel predeceased. Court held the phrase alone does not defeat the antilapse statute; the testator must "clearly and unequivocally" show intent to exclude descendants. Antilapse applied; Hazel's daughter took.
Minority: words of survivorship do defeat the antilapse statute.
- Rationale: the testator knowingly included survivorship language, showing intent that only a surviving beneficiary takes.
- Case—Bankers Trust Co. v. Allen (Iowa): "if she survives me" manifests intent that the gift lapses if the beneficiary dies first; antilapse does not apply.

Don't confuse: survivorship language vs. alternative disposition. "To A if A survives me" is ambiguous (does it just restate the lapse rule, or does it show intent?). "To A, but if A predeceases me, to B" is an alternative disposition that clearly defeats antilapse (the testator provided for the contingency).

📝 Alternative disposition—clear contrary intent

If the will provides an alternate taker in the event of the beneficiary's death, the antilapse statute does not apply.
Case—Kubiczky v. Wesbanco Bank Wheeling (West Virginia): testator left residue "to my three sisters … to the express exclusion of any other person or persons." One sister predeceased. Court held this phrase was not an alternative disposition or survivorship requirement; it merely excluded third parties (e.g., illegitimate children). Antilapse applied; the predeceased sister's son took her share.
- Key point: "exclusion of others" is not the same as "only if my sisters survive." The testator did not provide what happens if a sister predeceases, so the statute filled the gap.

Case—Mrocko v. Wright: will left property to sisters "providing that all named are living at my death." This is a clear survivorship requirement (alternative disposition), so antilapse did not apply.

Case—Keller v. Keller: trust for one child provided that on his death, his share "shall pay … to such of the brothers and sisters … as are then living." This is an express alternative disposition; antilapse did not apply.

🧷 Class gifts and antilapse

General rule: antilapse statutes do apply to class gifts.
If a class member who is a protected relative predeceases, the antilapse statute substitutes that member's issue.
Example: T leaves estate "to my children." One child predeceases, survived by grandchildren. Antilapse applies; the grandchildren take their parent's share.
Case—Gianoli: court held antilapse applies to class gifts (overwhelming weight of authority).
Case—Matter of Kalouse's Estate: gift to "first cousins" was a class gift. Predeceased cousins' shares stayed in the class (divided among surviving cousins); antilapse did not apply because the court found the testator intended a class gift, and the statute's operation depends on whether the gift is to a class or to individuals. (This case is complex; the court also held that extrinsic evidence of intent was inadmissible under the parol evidence rule.)

🏚️ Ademption by extinction—when property disappears

🏚️ What ademption by extinction means

Ademption by extinction: a specific devise fails if the specifically devised property is not in the testator's estate at death.

Applies only to specific devises: precisely described property ("my 1998 black Mustang," "my farm").
Does not apply to general, demonstrative, or residuary devises: these are satisfied from the general estate.
Identity theory (traditional/majority): if the specific property is gone, the gift is adeemed, regardless of the testator's intent or the reason for the property's absence.
- Rationale: ease of application, stability, predictability.
Intent theory (minority/UPC): courts consider the testator's intent and the circumstances of the property's disposition; the devisee may receive replacement property or cash value if that would effectuate intent.

Example (identity theory): T leaves "my 1998 black Mustang to Joe." T sells the Mustang before death. Joe gets nothing (not the sale proceeds, not a different car).

Example (general devise, no ademption): T leaves "$50,000 to Tina." T dies with only $10,000 cash. The executor must sell other property to raise $50,000 for Tina.

Example (demonstrative devise, no ademption): T leaves "$50,000 to Troy, to be paid from the sale of my Wells Fargo stock." T dies owning no Wells Fargo stock. Troy still gets $50,000 from the general estate.

🔍 Identity theory in action—Stewart v. Sewell

Facts: testator's will left Tim's Ford Lake property (house + 7 acres) to stepson Stewart. After execution, testator became incapacitated; her children (Sewell and Judkins), acting under durable power of attorney, sold part of the property (undeveloped 6 acres) to pay for testator's nursing home care. Testator died; Stewart received the house and 1 acre. Stewart sued, claiming he was entitled to the sale proceeds.
Holding: the sale adeemed the specific devise of the undeveloped tract by extinction. Under Tennessee's Hume rule (identity theory), "the rule prevails without regard to the intention of the testator or the hardship of the case." The proceeds cannot be substituted for the specific bequest.
Why the court rejected exceptions: Stewart argued Sewell and Judkins breached fiduciary duties, so a constructive trust should be imposed. Court disagreed: the evidence showed they sold the property properly to fund the testator's care; no improper use of proceeds occurred. The duty was owed to the testator, not Stewart.
Statute inapplicable: Tennessee Code §32-3-111 (similar to UPC §2-606) would have given Stewart the net sale price, but the statute was enacted in 2004, after the testator's 1998 death. Retroactive application would disturb Sewell and Judkins' vested rights.

Don't confuse: ademption by extinction (property gone) vs. ademption by satisfaction (property given to beneficiary during life, discussed below).

🛠️ UPC §2-606—mitigating harsh results (intent theory)

The UPC provides that a specific devisee is entitled to:
1. Unpaid purchase price and security agreement if the testator sold the property.
2. Condemnation award unpaid at death.
3. Insurance proceeds unpaid at death (fire, casualty, injury to property).
4. Foreclosure property: property the testator acquired by foreclosing on a specifically devised obligation.
5. Replacement property: real or tangible personal property the testator acquired as a replacement for the specifically devised property.
6. Pecuniary devise equal to the value of the property at disposition, if ademption would be inconsistent with the testator's manifested plan or if the testator did not intend ademption.
Special rule for incapacity: if a conservator or agent under durable power of attorney sells the property (or if condemnation/insurance proceeds are paid to them) for an incapacitated principal, the devisee gets a general pecuniary devise equal to the net sale price, condemnation award, or insurance proceeds.

Example (UPC applied to Stewart): if Tennessee's statute had been in effect, Stewart would have received the net sale price of the undeveloped tract (approximately $80,000 minus expenses), because Sewell and Judkins sold it under power of attorney while the testator was incapacitated.

🎁 Ademption by satisfaction—lifetime gifts as substitutes

🎁 What ademption by satisfaction means

Ademption by satisfaction: a testamentary gift is reduced or eliminated if the testator gave the beneficiary property during life that was intended to satisfy (substitute for) the will gift.

Applies to general monetary gifts (not specific devises).
Similar to advancements (intestacy context): if a parent gives a child property before death, it may be treated as an advance on the child's intestate share.
Presumption depends on relationship:
- Parent/child or in loco parentis: a subsequent gift is presumed to be in satisfaction of the legacy.
- Stranger: no presumption; the party claiming satisfaction must prove by clear and convincing evidence that the testator intended satisfaction.

Example: T's will leaves $100,000 to son Steve and the residue to daughter Bernice. T later gives Steve $80,000. Presumption: the $80,000 was in partial satisfaction. Steve takes only $20,000 from the estate.

🔍 Proving intent—In re Estate of Condon

Facts: testator's will left $10,000 to niece Mary and nephew Charles (share and share alike). Charles predeceased. In 1996, testator wrote checks to all specific beneficiaries (including $5,000 to Mary) with "will payment" in the memo. Testator died in 2003. Executor argued the 1996 payments satisfied the bequests; Mary claimed they were gifts and she was owed $10,000 (her $5,000 plus Charles's $5,000 under the will's survivorship clause).
Holding: the 1996 payment to Mary was in satisfaction of her $5,000 bequest. The "will payment" notation and the executor's testimony (testator "wanted to have the satisfaction of knowing that she gave the money") were clear evidence of intent. Mary is entitled to Charles's $5,000 (not satisfied), but not to an additional $5,000.
No presumption: Mary was a niece, not a child, so no presumption of satisfaction applied. The executor met the burden of clear proof.

📜 Modern statutes—writing requirement

Many states (e.g., South Dakota §29A-2-609) require written evidence of intent to satisfy:
- The will provides for deduction of the gift, or
- The testator declared in writing that the gift is in satisfaction, or
- The devisee acknowledged in writing that the gift is in satisfaction.
Effect: creates a presumption against satisfaction unless one of these writings exists.

Example (statute applied): T's will leaves $65,000 to sister Peggy. T later lends Peggy $23,000 (no writing). Under the statute, the loan is not in satisfaction; Peggy takes the full $65,000 (or the estate may seek repayment of the loan separately).

Example (statute, writing present): T's will leaves $150,000 to Animal Humane Society. T sends them $50,000 with a note: "Make the best of this cause you're not getting anything else from me." The note is a writing showing intent to satisfy. The Society takes $100,000 from the estate.

🏦 Exoneration of liens—who pays the mortgage?

🏦 Common law doctrine of exoneration

Exoneration of liens: the common law rule that if a will devises real or personal property subject to a mortgage or lien, the debt is paid from the residuary estate, so the devisee receives the property free and clear.

Presumption: the testator intended the debt to be paid out of the residue, not by the specific devisee.
Rationale: the testator made a specific gift; the testator presumably wanted the devisee to receive the full benefit.
Criticism: often contrary to actual intent; may exhaust the residue; unfair to residuary beneficiaries.

Example (common law): T's will leaves house to A and residue to B. House has a $40,000 mortgage. Under exoneration, the estate pays the $40,000 from the residue; A gets the house free and clear; B gets the residue minus $40,000.

🔍 Modern trend—statutes reversing exoneration

Many states (and UPC §2-607) have abrogated the common law rule by statute.
New rule: property passes subject to any lien, unless the will specifically provides for exoneration.
Generic debt-payment clause ("pay all my debts") is not sufficient to invoke exoneration.

Example (Virginia statute): "real or personal property … passes, subject to any mortgage … without the right of exoneration. A general directive in the will to pay debts shall not be evidence of a contrary intent."

Example (UPC/Nebraska): "A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts."

⚖️ Case law—Estate of Fussell v. Fortney (West Virginia)

Facts: testator's will stated "FIRST: I desire that all my just debts be paid as soon as conveniently possible after the date of my death." Will then devised two properties (subject to a single $120,000 mortgage) to daughters Fortney and Collette, and left the residue to daughter Simmons. Simmons (executrix) argued the "just debts" clause was boilerplate and the daughters should take the properties subject to the mortgage.
Holding: West Virginia follows the common law doctrine of exoneration (no statute abrogating it). The "just debts" clause is a general direction to pay all debts, including the mortgage. The estate must pay off the mortgage; Fortney and Collette receive the properties unencumbered.
Why "right, title, and interest" language did not negate exoneration: this phrase is ambiguous—it could mean the testator's full fee interest (free and clear) or the testator's encumbered interest. Standing alone, it does not clearly show intent to pass the property subject to the mortgage.
Why lack of apportionment formula mattered: if the testator intended the daughters to take subject to the mortgage, the will would have stated how to divide the $120,000 debt between the two properties. The absence of such a provision supports exoneration.

Don't confuse: exoneration (whether the estate pays a lien on devised property) vs. abatement (the order in which devises are reduced when the estate is insufficient to pay all gifts, discussed below).

📉 Abatement—reducing gifts when assets are insufficient

📉 What abatement means

Abatement: the process of reducing or eliminating devises when the estate's assets are insufficient to pay all debts and devises.

Order of abatement (unless the will directs otherwise):
1. Residuary devises are reduced first.
2. General devises are reduced second, pro rata (proportionally).
3. Specific and demonstrative devises are reduced last (also pro rata if necessary).
Rationale: specific devises are the most important to the testator (precisely described items); residuary is the "catch-all."

Example: Trudy's will leaves $100,000 to A (general), $300,000 to B (general), stamp collection to C (specific), and residue to D. Trudy dies with $500,000 in assets and $100,000 in debts. After paying debts, $400,000 remains. The residue is exhausted first; then general devises are reduced pro rata. A and B's gifts total $400,000, so they are paid in full; D (residuary) gets nothing. C gets the stamp collection.

Example (insufficient for general devises): same facts, but Trudy dies with $300,000 in assets and $100,000 in debts. After debts, $200,000 remains. Residue is exhausted (D gets nothing). A and B's gifts total $400,000, but only $200,000 is available. They are reduced pro rata: A gets $50,000 (1/4 of $200,000); B gets $150,000 (3/4 of $200,000). C still gets the stamp collection.

🧷 Void devises—ineligible or predeceased-at-execution beneficiaries

🧷 When a devise is void (not just lapsed)

A devise is void if:
- The beneficiary was already dead when the will was executed, or
- The beneficiary is ineligible to take (e.g., a pet, a non-existent entity).
Effect: same as lapse—the gift fails and falls into the residue (or intestacy if residuary).
Antilapse may still apply: some courts (e.g., Gianoli) hold that antilapse statutes apply to void gifts as well as lapsed gifts, if the beneficiary was a protected relative.

Example: Rudy's will (executed 2000) leaves $40,000 to brother Rick (died 1998) and $75,000 to Spike (a dog). Residue to cousins Lillian and Caine. Both gifts are void (Rick was dead at execution; Spike is ineligible). Both fall into the residue; Lillian and Caine split the entire estate.

🐕 Case—In re Estate of Russell (California)

Facts: testator's holographic will left residue "to Chester H. Quinn & Roxy Russell." Roxy Russell was the testator's pet Airedale dog, alive at execution but predeceased the testator. Niece (sole heir) argued the gift to Roxy was void; under the "no residue-of-a-residue" rule, Roxy's half should pass to her by intestacy.
Holding: the gift to Roxy is void (dogs cannot take by will). Roxy's half of the residue passes by intestacy to the niece. Quinn takes only his half.
Why the court admitted extrinsic evidence: to show that "Roxy Russell" was a dog (latent ambiguity). Once that was established, the court applied the law that dogs are ineligible.
Why the court rejected Quinn's argument: Quinn argued the will's language ("to care for the dog") was precatory (a wish, not a gift) and that he was to take the entire residue and use it to care for Roxy. The court held this interpretation was not reasonably supported by the will's plain language ("to Chester H. Quinn & Roxy Russell" = equal shares). Extrinsic evidence of Quinn's relationship with the testator was inadmissible to vary the will's terms.

Don't confuse: void devise (beneficiary dead at execution or ineligible) vs. lapsed devise (beneficiary alive at execution, died before testator). Both fail, but some jurisdictions treat them differently for antilapse purposes.

🧠 Summary of key doctrines and interactions

Issue	Doctrine	Key rule	Exception / Rebuttal
Beneficiary predeceases testator	Lapse	Gift fails; falls to residue or intestacy	Antilapse statute substitutes issue if beneficiary is protected relative
Antilapse applicability	Antilapse statute	Applies unless will shows contrary intent	Contrary intent: survivorship language (split), alternative disposition, express exclusion
Class vs. individual gifts	Class gift rule	Surviving class members divide; no lapse out of class	If individual gifts, each may lapse separately (antilapse may apply to each)
Specifically devised property gone	Ademption by extinction	Gift fails (identity theory)	Intent theory / UPC §2-606: devisee may get proceeds, replacement, or value if intent supports it
Testator gives property to beneficiary during life	Ademption by satisfaction	Gift is reduced/eliminated if intended as substitute	Presumption (parent/child) or clear proof required; modern statutes require writing
Mortgage on devised property	Exoneration of liens	Common law: estate pays mortgage (exoneration)	Modern statutes: property passes subject to lien unless will specifically provides exoneration
Estate insufficient to pay all gifts	Abatement	Reduce in order: residuary, general (pro rata), specific/demonstrative	Will may specify different order
Beneficiary dead at execution or ineligible	Void devise	Gift fails (same as lapse)	Antilapse may apply if beneficiary was protected relative (some jurisdictions)

📚 Interpretive principles and procedural notes

📚 Extrinsic evidence and will construction

General rule: courts interpret wills from the "four corners" of the document; extrinsic evidence is admissible to resolve ambiguities, not to contradict plain language.
Patent ambiguity: uncertainty on the face of the will (e.g., "I leave my estate to the president"—which president?). Courts admit extrinsic evidence of circumstances, but not oral declarations of intent.
Latent ambiguity: no uncertainty on the face, but extrinsic facts reveal ambiguity (e.g., "I leave my estate to President Bush"—two presidents named Bush exist). Courts admit extrinsic evidence to resolve.
Modern trend (Russell): courts may consider extrinsic evidence of circumstances to determine if an ambiguity exists, then admit further evidence to resolve it.
Parol evidence rule: extrinsic evidence cannot vary or contradict the will's terms if the language is unambiguous. This rule applies at least as strictly to wills as to contracts (wills must be in writing).

Example (Russell): "Roxy Russell" appeared unambiguous on the face of the will. Extrinsic evidence (testimony, independent witness) showed Roxy was a dog, creating a latent ambiguity (can a dog take?). Further extrinsic evidence (Quinn's testimony about the testator's intent) was offered but held inadmissible because the will's language ("to Chester H. Quinn & Roxy Russell") was not reasonably susceptible to the meaning Quinn claimed (entire residue to Quinn, with precatory language about the dog).

📚 Presumptions in will construction

Presumption against intestacy: courts presume the testator intended to dispose of the entire estate by will, not to die partially intestate.
- Residuary clauses are construed broadly to prevent intestacy.
- Ambiguities are resolved in favor of testacy.
Presumption of testator's knowledge of law: courts presume the testator knew the law (including antilapse statutes, exoneration rules) when drafting the will.
- Criticism: this is often a fiction; most testators do not know the law.
- Effect: if the testator used certain language (e.g., "if A survives me"), courts may infer the testator knew the legal effect.
Presumption in favor of antilapse: doubts are resolved in favor of the statute's operation; the burden is on the party opposing it to show contrary intent.

📚 Remedial vs. penal construction

Antilapse statutes are remedial: they are designed to carry out presumed intent and prevent unintended disinheritance. They receive liberal construction and broad application.
Slayer/abuser statutes are remedial, not penal: they regulate receipt of benefits (no one should profit from their own wrong), but they do not punish innocent descendants. Hence, antilapse applies to pass the slayer/abuser's share to the slayer/abuser's issue.

🧩 Practical takeaways for drafting and litigation

🧩 For drafters (attorneys)

To avoid lapse issues:
- Include alternative dispositions: "to A, but if A predeceases me, to B."
- Use survivorship language carefully: "to A if A survives me" may or may not defeat antilapse (jurisdiction-dependent). Better: "to A if A survives me, otherwise to B."
- Name substitute takers for each gift, especially for close relatives.
To avoid ademption by extinction:
- Use general devises instead of specific devises when flexibility is desired ("$50,000 to A" rather than "my Wells Fargo stock to A").
- Include a non-ademption clause: "If I no longer own [property] at my death, A shall receive [replacement or cash value]."
To avoid ademption by satisfaction:
- If making lifetime gifts, document intent in writing (required by many statutes).
- Include a clause in the will: "No lifetime gifts shall be deemed in satisfaction of any devise unless I so state in writing."
To clarify exoneration:
- If you want exoneration (estate pays mortgage): "I direct that all liens and encumbrances on property devised herein be paid from my residuary estate."
- If you do not want exoneration (devisee takes subject to lien): "All property devised herein passes subject to any liens or encumbrances thereon, without right of exoneration."
To control abatement:
- Specify the order: "If my estate is insufficient to pay all devises, gifts shall abate in the following order: [list]."

🧩 For litigants (interpreting existing wills)

Lapse/antilapse disputes:
- Determine if the predeceased beneficiary is a protected relative under the statute.
- Search the will for contrary intent: survivorship language, alternative dispositions, express exclusions.
- Argue presumption in favor of antilapse; opponent bears burden of showing contrary intent.
Ademption disputes:
- Identify whether the devise is specific (ademption applies) or general/demonstrative (no ademption).
- In intent-theory or UPC jurisdictions, gather evidence of the testator's intent and circumstances of the property's disposition.
- Check if a statute (like UPC §2-606) applies and whether it applies retroactively (vested rights issue).
Satisfaction disputes:
- Determine the relationship (parent/child presumption vs. stranger, clear proof required).
- Look for writings (memo on check, letter, will clause) evidencing intent.
- In statute jurisdictions, check if the writing requirement is met.
Exoneration disputes:
- Check if the jurisdiction follows common law (exoneration presumed) or modern statute (no exoneration unless will specifies).
- Analyze the will's language: does "pay all my debts" or similar language invoke exoneration (jurisdiction-dependent)?
- Look for specific language about liens (e.g., "my right, title, and interest" is ambiguous; "subject to all liens" is clear).

Note: The excerpt contains extensive case law and statutory examples. The above notes synthesize the key rules, rationales, and distinctions. When studying, focus on understanding why each rule exists (policy), how courts apply it (case examples), and how to distinguish similar doctrines (e.g., lapse vs. ademption, class vs. individual gifts, exoneration vs. abatement).

Chapter Sixteen: Will Substitutes

🧭 Overview

🧠 One-sentence thesis

Will substitutes allow property owners to transfer assets at death outside the probate system by creating present interests that vest in beneficiaries upon the owner's death, offering flexibility and avoiding court supervision but requiring compliance with specific legal formalities for each transfer method.

📌 Key points (3–5)

What will substitutes are: Non-probate transfers that allocate property without relying on the probate system; the owner gives away an interest during life but postpones vesting until death.
How they differ from wills: Beneficiaries receive property from third parties (e.g., insurance companies, banks) or by operation of law, not from the probate court; no court supervision is required.
Five main types covered: Life insurance, retirement accounts, joint bank accounts, concurrently owned property, and inter vivos trusts.
Common confusion—revocability vs. finality: Some substitutes (like revocable trusts or life insurance beneficiary designations) can be changed during life, while others (like joint tenancies) cannot be unilaterally revoked once created.
Why they matter: Will substitutes can simplify estate administration, avoid probate costs and delays, but may create unintended consequences if not properly coordinated with wills or if formalities are not followed.

💼 Life Insurance as a Will Substitute

💼 How life insurance transfers wealth at death

Life insurance policy: A contract that pays a specified sum to a named beneficiary upon the insured's death.

The insured names a beneficiary on the policy; when the insured dies, the insurance company pays the proceeds directly to that beneficiary.
Example: A takes out a $100,000 policy naming B as beneficiary; when A dies, B receives $100,000 from the insurer, not from A's estate.
The beneficiary has only an expectancy (not a vested right) until the insured dies.
Life insurance proceeds are not part of the probate estate unless the estate itself is named as beneficiary.

🔄 Changing the beneficiary

The insured may change the beneficiary at any time during life (if the policy is not irrevocable).
Method matters: The insured must follow the procedure specified in the policy contract to effect a valid change.
Courts may apply equitable doctrines (similar to will doctrines) to honor the insured's intent if strict compliance was not achieved but substantial compliance occurred.

⚖️ Carruthers v. $21,000: Strict vs. substantial compliance

Facts: Theodore Dolbow changed his life insurance beneficiary twice in compliance with policy requirements (first to his wife, then to his brother James, then to Lois Carruthers). Later, he executed a holographic will stating all insurance should go to James. He did not notify the insurer of this change before his death.

Issue: Did the will effectively change the beneficiary?

Holding: No. The will did not work a change of beneficiary because:

The policy required written notice received and recorded by the insurer to effect a change.
The insured made no effort to comply with the policy provisions during the 3.5 months he lived after executing the will.
The insured had successfully changed beneficiaries twice before, demonstrating knowledge of the required procedure.
No extenuating circumstances justified applying the doctrine of substantial compliance.

Don't confuse: A will provision attempting to change a beneficiary is not the same as notice to the insurer; the insurer must be informed for the change to take effect.

⚖️ Doss v. Kalas: When intent prevails over formalities

Facts: Richard Doss created two life insurance policies naming his minor children as equal beneficiaries with right of survivorship. His will nominated his wife Elsie as "guardian of my insurance" to manage proceeds for the children after paying funeral bills. The will used a printed form with typed insertions.

Issue: Did the will effectively change the beneficiary designation and create a trust?

Holding: Yes. The court found:

Policy 4161DA specified a procedure for changing beneficiaries, but those requirements are for the insurer's protection. If the insurer does not demand compliance (and here it paid out without objection), the insured's intent should govern.
Policy 4161 reserved the right to change beneficiaries without specifying a method, so a change by will was valid.
The will created a valid trust: competent settlor and trustee, clear intent ("guardian" in context meant trustee), ascertainable res (insurance proceeds), and certain beneficiaries (the two children).
A will provision changing a beneficiary "operates as an expression of intent which occurred at the time of making the will, during the lifetime of the insured," not merely at death.

Key distinction from Carruthers: Here the insurer acquiesced by paying without objection, and one policy did not specify a change procedure; in Carruthers the insured had demonstrated knowledge of the required procedure and made no effort to comply.

📋 Important rules about life insurance

Rule	Explanation
Not subject to creditors	Life insurance proceeds paid to a named beneficiary are not available to pay the decedent's debts (even if the estate has unpaid debts).
Slayer statutes apply	A person who intentionally murders the insured forfeits the right to receive life insurance proceeds.
Divorce does not automatically revoke	A divorce decree does not impliedly revoke a former spouse as beneficiary; the insured must affirmatively remove the ex-spouse.
Insurer's obligation ends at payment	Once the insurer pays the named beneficiary, it has no further duty; there is no mechanism to ensure the beneficiary uses the money as the insured wished (e.g., for funeral expenses).

🔍 Term vs. whole life insurance

Type	Features
Term life	Protects for a specified period (1–20 years); premiums increase with age; must be renewed if term expires before death.
Whole life	Permanent coverage; level premium for life; builds cash value that the insurer invests; cash value supplements premiums in later years.

🏦 Private Retirement Accounts

🏦 How retirement accounts transfer wealth

The account owner designates a beneficiary; upon the owner's death, the named beneficiary has the legal right to the account funds.
Two main types (IRAs are not covered here because they are not employee benefit plans):
- Defined benefit plan (pension): Guarantees a set monthly amount for life (or joint lives) based on wages and length of service.
- Defined contribution plan: Employer promises certain contributions during employment; benefit depends on contributions and investment earnings; ceases when account is depleted.

⚖️ Federal law limits state law: ERISA preemption

Retirement accounts are governed by two federal laws:
- Retirement Equity Act (REA): Requires spousal consent to change the beneficiary to someone other than the spouse.
- Employee Retirement Income Security Act (ERISA): Preempts state laws that "relate to" ERISA plans.

⚖️ Egelhoff v. Egelhoff: ERISA preempts state revocation-on-divorce statutes

Facts: David Egelhoff designated his wife Donna as beneficiary of his Boeing life insurance and pension (both ERISA plans). They divorced in April 1994; David died two months later without changing the beneficiary designations. Washington state law provided that divorce automatically revokes a designation of a spouse as beneficiary of a nonprobate asset. David's children from a prior marriage (the statutory heirs) sued to recover the proceeds, arguing the Washington statute disqualified Donna.

Issue: Does ERISA preempt the Washington statute?

Holding: Yes. ERISA's express preemption provision ("shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan") preempts the Washington statute because:

The statute has a "connection with" ERISA plans: It binds plan administrators to a state-law rule for determining beneficiary status, forcing them to pay benefits to beneficiaries chosen by state law rather than those identified in plan documents.
This contradicts ERISA's commands that a plan must "specify the basis on which payments are made" and that the fiduciary must administer the plan "in accordance with the documents and instruments governing the plan."
The statute interferes with uniform national administration: Administrators would have to master the laws of 50 states and face choice-of-law problems, increasing administrative and financial burdens—precisely what ERISA preemption was intended to avoid.
The opt-out provision (allowing plans to "expressly provide otherwise") does not save the statute; it still imposes a burden by requiring administrators to familiarize themselves with all state laws and update plans accordingly.

Don't confuse: The presumption against preemption in areas of traditional state regulation (family law, probate) can be overcome when Congress has made clear its desire for preemption, as it did in ERISA.

Dissent's view (Justice Breyer): The Washington statute does not directly conflict with ERISA; it merely fills a gap (what happens when a beneficiary designation becomes "invalid" due to divorce) and serves ERISA's goal of fairness by implementing a presumption that divorced workers prefer children over ex-spouses. The administrative burden is minimal because administrators already consult state law for many issues (e.g., who qualifies as a "spouse" or "child").

🏦 Joint Bank Accounts

🏦 How joint accounts transfer wealth

A joint tenancy bank account gives all listed parties a present right to withdraw funds during life; the surviving party receives the balance at death.
A payable on death (POD) account restricts withdrawals during the owner's life to the owner alone; the named beneficiary receives the balance only upon the owner's death.
A Totten trust (also called a "poor man's trust") is a savings account opened "in trust for" a beneficiary; the depositor retains the right to revoke by withdrawing funds at any time; the beneficiary is entitled to the balance only at the depositor's death.

⚖️ In re Estate of Platt: Survivorship rights and the duty to distribute

Facts: Linnea Platt created a joint-and-survivorship CD (account 49) with her son Gerald (appellant), funded with $10,000 from the sale of her house. Gerald had power of attorney. The CD matured on July 3, 1997. On July 9, 1997, Gerald (by telephone) instructed the bank to transfer the funds from account 49 into a new POD account (account 63) naming Linnea as sole owner and Gerald as beneficiary. Linnea died July 21, 1997. Her other children (Sandra and Kenneth) objected to the inventory, arguing account 63 should be included in the estate.

Issue: Did Gerald forfeit his survivorship right in account 49 by transferring the funds to a POD account?

Trial court holding: Yes. Gerald forfeited his survivorship right because he withdrew the funds and directed their transfer to a POD account in which Linnea was sole owner; Gerald's designation of himself as beneficiary was invalid because Linnea did not sign or authorize the POD account.

Appellate court holding: Reversed. Gerald did not forfeit his survivorship right because:

Joint-and-survivorship account law: During the parties' lifetimes, the account belongs to them in proportion to their contributions (here, Linnea contributed 100%, so she owned the funds during life). But there is a conclusive presumption that the depositor intended the balance to belong to the survivor at death.
No challenge during life: Any challenge to unauthorized withdrawals by a beneficiary must be made before the depositor's death. After death, the money would belong to the beneficiary anyway. Only challenges based on fraud, duress, undue influence, or lack of capacity are permitted after death. (None were raised here.)
POD account did not benefit Gerald during life: By depositing the funds into a POD account, Gerald conferred no benefit on himself; Linnea remained in sole control, and Gerald's interest vested only upon her death—exactly as it would have under the joint-and-survivorship account.
Equitable result: The decedent's intentions were carried out; Gerald retained his survivorship interest.

Don't confuse:

Joint account vs. POD account: In a joint account, all parties have withdrawal rights during life and the survivor takes at death. In a POD account, only the owner has withdrawal rights during life; the beneficiary's interest vests only at death.
Agency/convenience account: Set up for a third party to draw on the account during the depositor's life only for the depositor's convenience; the third party does not receive the balance at death (it goes to the estate).

🔍 Key distinctions among account types

Account type	Ownership during life	Withdrawal rights during life	Who receives balance at death
Joint tenancy	All parties, in proportion to contributions (unless clear evidence of different intent)	All parties	Survivor(s)
Payable on death (POD)	Owner alone	Owner alone	Named beneficiary
Totten trust	Depositor (as trustee)	Depositor alone (can revoke)	Named beneficiary
Agency/convenience	Depositor alone	Agent for depositor's benefit only	Estate (not the agent)

🏡 Concurrently Owned Real Property

🏡 Joint tenancy and tenancy by the entirety

Joint tenancy: Co-ownership in which each owner has the right to possess the entire property; when one owner dies, the surviving owner(s) automatically become sole owner(s) (the decedent's interest disappears at death).

Tenancy by the entirety: A joint tenancy that can only be entered into by married persons.

No probate needed: The decedent's interest vanishes at death; no interest "passes" to the survivor, so nothing goes through probate.
Cannot be devised by will: A joint tenant cannot leave his or her share to someone else by will.
Cannot be unilaterally revoked: Once created, a joint tenant cannot cancel the other tenant's interest during life.

🔧 Severing a joint tenancy

To leave one's share to someone other than the co-tenant, the joint tenant must sever the joint tenancy during life, converting it to a tenancy in common.
Example: A and B own a house as joint tenants. A wants to leave her interest to C. A transfers her interest to D, and D transfers it back to A. Now A and B are tenants in common, and A can devise her share to C by will.

🏛️ Inter Vivos Trusts

🏛️ What is an inter vivos trust?

Inter vivos trust: A trust established during the settlor's lifetime (as opposed to a testamentary trust created by will).

Parties:
- Settlor: The person who establishes the trust.
- Trustee: The person who administers the trust (may be the settlor or a third party).
- Beneficiary: The person intended to benefit from the trust.
How it avoids probate: The beneficiary becomes the equitable owner of the trust property when the trust is created; the trustee becomes the legal owner. Upon the settlor's death, the property is distributed according to the trust terms, not through probate.

🔨 Two methods of creating an inter vivos trust

Method	Description	Example
Declaration of trust	Settlor declares that he or she holds property in trust	"I hold my farm in trust for the benefit of myself for life with the remainder to be held in trust for my son."
Deed of trust	Settlor transfers property to another person as trustee	"I leave my estate in trust to John for the benefit of myself for life with the remainder to be held in trust for my son."

✅ Three requirements for a valid trust

Intent: The settlor must intend to create a trust (not merely make a gift or express a future wish).
Property (corpus): There must be identifiable trust property (any item capable of ownership; may include life insurance proceeds if the trust is named as beneficiary).
Beneficiaries: There must be ascertainable beneficiaries who can hold the trustee accountable.

🧠 Intent to create a trust

⚖️ Frazier v. Hudson: Failed gift cannot be enforced as a trust

Facts: A.M. Hudson (defendant, age 78) had divided his farm among his children, giving his daughter Mary Lee (plaintiff) 62 acres outright plus 62 acres subject to his life estate. He owned U.S. Liberty Bonds. On March 13, 1926, he went to the bank, endorsed one bond to each child (writing "For value received I assign to Mary Lee Hudson the within registered bond..."), acknowledged the endorsements before the bank cashier, and put the bonds back in his safe deposit box. He did not inform anyone of the endorsements. A year later, the government wanted to redeem the bonds; Hudson notified his children and asked them to re-transfer the bonds so he could redeem and reinvest them. All children except Mary Lee consented. She sued, claiming the bond as a gift inter vivos or, alternatively, under a declaratory trust.

Plaintiff's argument: Even if the transaction was not an effective inter vivos gift (no delivery, no passing of dividends, no surrender of custody), the formal written declaration before an official was sufficient to create an enforceable trust.

Defendant's testimony: He intended only to arrange for his children to receive the bonds at his death if he still owned them and had not consumed them for living expenses; he did not intend a present transfer.

Holding: No trust was created. The court found:

Intent is essential: "One of the chief elements essential to the creation of such a trust is the manifestation of an intent on the part of the alleged donor or trustee to create it."
Intent must be determined from the instrument itself (if the language is clear), not from subsequent declarations. "The possibility that the trustor may be alive should have no effect upon the interpretation... Its construction depends upon the trustor's intent at the time of execution as shown by the face of the document."
Defendant's conduct refutes present intent: He retained possession, collected interest for his own use, and did not inform the children—all inconsistent with an intent to create a present trust.
Equity will not rescue a failed gift: "An ineffective gift... will not be upheld merely because it would have been effective if [the donor] had manifested an intention to employ one of the other methods." "A gift of the equitable or beneficial title must be as complete and effectual in the case of a trust as is the gift of the thing itself in a gift inter vivos. There must be an executed gift of the equitable title."

Don't confuse: A trust requires the same level of present intent and executed transfer as a gift; you cannot create a trust by failing to complete a gift.

⚖️ Bothe v. Dennie: No delivery, no trust

Facts: D. Clinton Todd made plaintiff a co-registrant on his safe deposit box (October 29, 1971) and gave plaintiff a key to his garage and showed him where the safe deposit key was kept in the house. Todd executed a will on November 12, 1971. On December 16, 1971, Todd gave plaintiff a sealed envelope marked "to be opened immediately after my death." Inside was an unsigned instrument listing bearer bonds totaling $120,000 in the safe deposit box, stating an intention not to list them as estate assets to avoid taxes, and directing plaintiff to remove the bonds after Todd's death and distribute them as specified. Todd died March 22, 1972. Plaintiff could not access the box (he did not have the key). Defendant (executrix) obtained the bonds.

Plaintiff's argument: The transaction was either an executed gift or an inter vivos trust.

Holding: Neither a valid gift nor a valid trust was created because:

No delivery: "In order for a gift to be effective, the owner must have intended to make a gift and he must have made actual or constructive delivery of the subject matter of the gift." Delivery must occur during the donor's lifetime. Here, the bonds were never physically delivered, never pointed out or set apart as belonging to plaintiff, and Todd retained the key and clipped interest coupons.
No present transfer of dominion: "It must appear that during his lifetime the donor relinquished in favor of the donee all present and future dominion and control over the gift property." Todd's instrument referred to bonds "in my safe deposit box" and directed actions to be taken "after my death"—showing he considered the bonds his own until death.
Trust requires same formalities as gift: "In order to create such a trust, where the creation of the trust is without legal consideration, the formal requirements for a valid gift must be found." The donor must have "divested himself of some interest which he formerly had in the property, and the divestiture must have been absolute at the time of creation of the trust."
Testamentary intent: The instrument was intended to take effect only at death, so it would need to comply with testamentary formalities (which it did not).

Comparison to Innes v. Potter: In Innes, the donor endorsed stock certificates for transfer, wrote the daughter that he had transferred the stock, and delivered the certificates to a third party for delivery to the daughter upon his death. The gift was upheld because the donor "parted with all control over it, he had not retained a right to recall it, and he intended that action to be a final disposition of the property." Here, Todd retained control and the right to recall.

Don't confuse: Naming someone as co-registrant on a safe deposit box and giving access to keys is not the same as delivering the contents or creating a present interest in them.

📦 Property (corpus) requirement

🔄 Pour-over wills and unfunded trusts

Normally, a trust must have property (corpus) to be valid.
Exception: A pour-over will can devise property to an inter vivos trust even if the trust is unfunded at the time of the will's execution.
How it works: The settlor creates an inter vivos trust (but does not fund it) and executes a will stating that part or all of the estate will "pour over" into the trust. The trust is incorporated by reference into the will.
Authorized by the Uniform Testamentary Additions to Trusts Act (UTATA), adopted in Iowa, Oregon, and many other states.

⚖️ In re Estate of McDowell: Pour-over property must go to the trust, not be sold by executors

Facts: Florence McDowell created a revocable living trust in 1990 and executed a will the same day with a pour-over provision devising "all the rest, residue and remainder" of her estate to the Trust. Schedule A of the Trust listed an 80-acre farm. Florence transferred assets to the Trust during her life but inexplicably never conveyed the farm; she held title at death. The will named daughters Martha and Mary as co-executors. The Trust named daughter Evelyn as trustee (later co-trustee with Florence). Upon Florence's death, the Trust directed certain distributions to specific persons and the remainder to be divided equally among the three daughters. The co-executors petitioned to sell the farm under Iowa Code § 633.386(1)(c) (authorizing sale "for any other purpose in the best interests of the estate"). Evelyn (as trustee) resisted, arguing the farm should be distributed to the Trust under the pour-over provision.

Trial court holding: Granted the co-executors authority to sell, finding it in the best interests of the estate because (1) the daughters were elderly and lived far away (West Coast), (2) a one-third interest each would not produce sufficient income, and (3) if the farm went to the Trust, Evelyn (as trustee) would manage it and her son wanted to purchase it, which would not be in the other daughters' best interests.

Appellate court holding: Reversed. The farm must be distributed to the Trust because:

Iowa Code § 633.275 (implementing UTATA) provides: "the property so devised or bequeathed [to the trust] shall not be deemed to be held under a testamentary trust for the testator, but shall become a part of the trust to which it is given and shall be administered and disposed of in accordance with the instrument or will setting forth the terms of the trust." (Emphasis in opinion.)
The word "shall" imposes a duty; the statute is mandatory.
Decedent's intent is clear: The will unambiguously devised the residue (including the farm) to the Trust "to be added to and become a part and be administered and disposed of in accordance with the terms... of [the] trust."
Pour-over advantages: Permits unified administration, avoids continued court supervision, allows flexibility, and takes property out of probate proceedings. "A pour-over provision envisions the pouring over of the residuary to a trust, not its retention by the estate's personal representative with disposal at his or her discretion."
Section 633.386(1)(c) is inapplicable: Before determining whether it is in the estate's best interests to sell, the court must answer the antecedent question: Do the co-executors have a duty to distribute the farm to the Trust? If yes, the question of sale is moot. Here, they do have that duty.
Distinguishing In re Scheib Trust: In Scheib, the farmland was subject to testamentary trusts under the decedents' wills, and those trusts had never been funded. There was no pour-over provision devising the land to an inter vivos trust. Here, the pour-over provision creates a duty to distribute.

Don't confuse: Once property is distributed to a trust under a pour-over provision, the executors lose authority to sell or administer it; the trustee (not the probate court) administers the trust property.

🔄 Revocable vs. irrevocable trusts

Revocable trust: A trust that the settlor can modify or terminate during life.

Irrevocable trust: A trust that the settlor cannot change or revoke.

Revocable trusts are like wills: They do not become final until the settlor's death, so the settlor retains control.
Presumption: Historically, courts presumed trusts were revocable unless stated otherwise. Currently, there is a rebuttable presumption that inter vivos trusts are irrevocable; the settlor must expressly reserve the right to revoke.
All trusts become irrevocable at the settlor's death.

⚖️ Chiles v. Chiles: Cannot modify an irrevocable trust to defeat beneficiaries' interests

Facts: Respondent (grandfather) created an irrevocable inter vivos trust funded with over $2 million in securities. The trust provided: (1) distributions to settlor during his life, (2) distributions to specified intermediate beneficiaries (including appellant, his minor grandson) during their lifetimes, and (3) upon termination of intermediate interests, corpus to be used as a permanent endowment with income distributed to the Lottie Moon Christmas Offering (a charity). Settlor petitioned to modify the trust by extinguishing the intermediate beneficiaries' interests, claiming the IRS advised him that the trust as written would not qualify as a charitable contribution because no corpus would remain for the charity after the intermediate distributions.

Issue: May a court modify an irrevocable trust to extinguish a beneficiary's interest in order to achieve the settlor's charitable intent?

Holding: No (as to the minor appellant). The court may not extinguish the minor's interest because:

Equity may modify a trust to effectuate intent, but only in emergencies: "A court of equity has the power to alter or modify a trust to effectuate the intent of the settlor... However, it is the duty of the courts to preserve, not destroy, trusts and to see to it that the rights of infants are not injuriously affected." Modification "can be justified only by some exigency or emergency which makes the action of the court in a sense indispensable to the preservation of the trust."
Intent is determined from the instrument's language, not subsequent declarations: "Resort is first to be had to its language, and if such is perfectly plain and capable of legal construction, such language determines the force and effect of the instrument. Extrinsic facts cannot... give the instrument a different construction from that imported by its terms." "The possibility that the trustor may be alive should have no effect upon the interpretation... Its construction depends upon the trustor's intent at the time of execution as shown by the face of the document and not on any secret wishes, desires or thoughts after the event."
The instrument shows dual intent: Although settlor testified his intent was to benefit the charity, "it is manifest from the language of the document that he also intended to provide for his grandson during his lifetime."
Intermediate benefits take precedence: The charity was given only a remainder interest, and the instrument states the charity receives benefits "after special benefits have been paid according to the terms of this trust." The term "special benefits" includes those payable to the grandson.
Extinguishment would defeat, not effectuate, intent: Eliminating the grandson's interest would contradict the clear intent expressed in the trust instrument.
Irrevocability means something: "To allow subsequent declarations of intent to control construction when the language of the instrument itself is clear would render the irrevocability provision a nullity and allow the settlor to revoke or modify a trust at will in direct contravention of the recognized rule that a trust cannot be revoked unless such a power is expressly reserved in the instrument."
Tax considerations are not an emergency: The litigation was "largely motivated by tax considerations," which do not justify modification.

Don't confuse: The settlor's subjective intent at the time of trial is not the same as the intent objectively manifested in the trust instrument at the time of execution; only the latter controls.