Deck 52: Wills and Trusts

Question 1

Do you think that the law strikes a fair balance between the rights of parties with respect to found property Why or why not

Answer 1

Balance of Rights:
When balancing the interests of those who would claim ownership over property, it is important to put the original owner's interests first. The individual who finds the property may claim it against anyone except the original owner.
Found property is broken down to four parts:
1. Abandoned property - owner intends to surrender all rights to property. The first person who takes possession acquires title that is valid, including the prior owner.
2. Lost property - owner intends to part with the property and does not know where it is. The individual who finds the property may claim it against anyone except the original owner.
3. Mislaid property - an owner voluntarily puts property in a particular place for safekeeping, but then does not claim it. The individual who finds the property may claim it against anyone except the original owner.
4. Treasure trove - valuable items intentionally concealed in the distant past by an unknown owner for safekeeping in a secret location. The landowner is awarded title.
Hence, the interests of the parties involved are balanced.

Question 2

Why would the caveators argue that the entire will should be revoked How would the will's revocation benefit them

Answer 2

Why Revoke the Will:
In the case Peterson v. Harrell, 690 S.E.2d 151 (2010) the trial court granted the petition to probate in solemn form. The Supreme Court of Georgia affirmed.
Caveators filed a petition to probate alleging the will was not properly executed or had been revoked due to obliterations. If granted, the entire will would be revoked and the estate would be distributed to all eligible beneficiaries.
Hence, even the beneficiaries whose names were struck from the will would be eligible for a share in the estate.

Question 3

Wills and Intestacy Laws Benjamin is a widower who has two married children, Edward and Patricia. Patricia has two children, Perry and Paul. Edward has no children. Benjamin dies, and his typewritten will leaves all of his property equally to his children, Edward and Patricia, and provides that should a child predecease him, the grandchildren arc to take per stirpes. The will was witnessed by Patricia and by Benjamin's lawyer and was signed by Benjamin in their presence. Patricia has predeceased Benjamin. Edward claims the will is invalid.
(a) Discuss whether the will is valid.
(b) Discuss the distribution of Benjamin's estate if the will is invalid.
(c) Discuss the distribution of Benjamin's estate if the will is valid.

Answer 3

a). Valid Will:
In order for a will to be valid it must adhere to the following:
1. Must be in writing.
2. Must be signed by the testator.
3. Must be witnessed. The number of witnesses vary by state as well as who qualifies as a witness.
The validity of the will depends on the state laws dealing with witness qualifications because one of the witnesses was an interested party.
b). Invalid Will Distribution:
On the occasion that a will is determined to be invalid, the state intestacy laws take precedence. State laws specify the distribution of an estate in accordance with the intent of the decedent.
In general, the spouse and all surviving children share the estate. Since Patricia has predeceased Benjamin, the only surviving heir under intestate state law is Edward. Edward will receive the entire estate with Patricia's children receiving nothing.
c). Valid Will Distribution:
Since the will has been determined to be valid, the estate shares equally between Patricia and Edward. Edward will receive half of the estate. Under the terms of the will, since Patricia predeceased Benjamin, her two children will share equally in Patricia's fifty percent of the estate under the per stirpes clause.

Question 4

Do the different standards of care that apply to bailed goods reflect underlying ethical values If so, how

Question 5

What could the testator have done differently to clarify her intentions in her will

Question 6

Specific Bequests Gary Mendel drew up a will in which he left his favorite car, a 1966 red Ferrari, to his daughter, Roberta. A year prior to his death, Mendel soldthe 1966 Ferrari and purchased a 1969 Ferrari. Discuss whether Roberta will inherit the 1969 Ferrari under the terms of her father's will.

Question 7

Do you believe that it is fair for courts to decide whether a regulatory taking has occurred on a case-by-case basis and not to articulate a general rule on which landowners can rely Why or why not

Question 8

QUESTION WITH SAMPLE ANSWER: Revocation of Wills.
While single, James made out a will naming his mother, Carol, as sole beneficiary. Later, James married Lisa.
(a) If James died while married to Lisa without changing his will, would the estate go to his mother,Carol Explain.
(b) Assume that James made out a new will on his marriage to Lisa, leaving his entire estate to Lisa. Later, he divorced Lisa and married Mandis, but he did not change his will. Discuss the rights of Lisa and Mandis to James's estate after his death.
(c) Assume that James divorced Lisa, married Mandis, and changed his will, leaving his estate to Mandis. Later, a daughter, Claire, was born. James died without having included Claire in his will. Discuss fully whether Claire has any rights in the estate.

Question 9

Should posthumously conceived children have the same inheritance rights as children born during the decedent's life Why or why not How can a balance be struck between the interests of children born during the lifetime of the decedent and those born after the parent's death

Question 10

Intent Requirement Merlin Winters had three sons. Merlin and his youngest son, Abraham, had a falling out in 1994 and stopped speaking to each other. Merlin made a formal will in 1996, leaving all of his property to the two older sons and explicitly excluding Abraham. Merlin's health began to deteriorate, and by 1997, he was under the full-time care of a nurse, Julia. In 1998, he made a new will expressly revoking the 1996 will and leaving all of his property to Julia. On Merlin's death, the two older sons contest the 1998 will, claiming that Julia exercised undue influence over their father. Abraham claims that both wills are invalid because the first will was revoked by the second will, and the second will is invalid on the ground of undue influence. Is Abraham's contention correct Explain.

Question 11

Intestacy Laws In January 1993, three and a half years after Lauren and Warren Woodward were married, they were informed that Warren had leukemia. At the time, the couple had no children, and the doctors cold the Woodwards that the leukemia treatment might leave Mr. Woodward sterile. The couple arranged for Mr. Woodward's sperm to be collected and placed in a sperm bank for later use. In October 1993, Warren Woodward died. Two years later, Lauren Woodward gave birth to twin girls who had been conceived through artificial insemination using Mr. Woodward's sperm. The following year, Mrs. Woodward applied for Social Security survivor benefits for the two children. The Social Security Administration (SSA) rejected her application, on the ground that she had not established that the twins were the husband's children within the meaning of the Social Security Act of 1935. Mrs. Woodward then filed a paternity action in Massachusetts, and the probate court determined that Warren Woodward was the twins' father. Mrs. Woodward resubmitted her application to the SSA but was again refused survivor benefits for the twins. She then filed an action in a federal district court to determine the inheritance rights, under Massachusetts's intestacy law, of children conceived from the sperm of a deceased individual and his surviving spouse. How should the court resolve this case Should children conceived after a parent's death (by means of artificial insemination or in vitro fertilization) still inherit under intestate succession laws Why or why not [ Woodward v. Commissioner of Social Security , 435 Mass. 536, 760 N.E.2d 257 (2002)]

Question 12

Wills In 1944, Benjamin Feinberg bought a plot in Beth Israel Cemetery in Plattsburgh, New York. A mausoleum was built on the plot to contain six crypts. In 1954, Feinberg's spouse died and was interred in one of the crypts. Feinberg, his only son, one of his two daughters, and the daughter's son, Julian Bergman, began using the mausoleum regularly as a place of prayer and meditation. When Feinberg died, he was interred in the mausoleum. His two daughters were interred in two of the remaining crypts on their deaths. Feinberg's son died in 2001 and was interred in the fifth crypt. His widow, Laurie, then changed the locks on the mausoleum and refused access to Julian, who filed a suit in a New York state court against her to obtain a key. Feinberg and all of his children died testate, but none of them made a specific bequest of their interest in the plot to anyone. Each person's will included a residuary clause, however. Who owns the plot, who has access to it, and why [Bergman v. Feinberg , 6 A.D.3d 1031, 776 N.Y.S.2d 611 (3 Dept. 2004)]

Question 13

CASE PROBLEM WITH SAMPLE ANSWER: Wills.
James Lillard's first wife had a child whom James adopted when he married that child's mother, fames fathered other children with her until they divorced in the early 1970s. In 1975, James married his second wife. During this marriage, each spouse's biological children remained the other's stepchildren because neither spouse adopted the other's children. James's second wife died in 2002, and he was diagnosed with terminal cancer in January 2004. In February, he executed a will that divided his property equally among all of his children and stepchildren. By October, James was living with his children, who managed his finances and administered his prescribed drugs, which impaired him mentally and physically. A hospice worker noted that on October 5 James had difficulty completing sentences and was forgetful. A visitor two days later described him as "morphined up." On this same day, he tore his first will in half and executed a new will that left most of his property to his children. James died on October 19. His children submitted the second will to a Georgia state court for probate. His stepchildren objected, alleging, among other things, that at the time of its execution, James lacked testamentary capacity. His children responded that the first will had been validly revoked. Which will should be declared valid Why [ Lillard v. Owens, 281 Ga. 619 641 S.E.2d 511 (2007)]

Question 14

Intestacy Laws A Florida statute provides that the right of election of a surviving spouse can be waived by written agreement: "A waiver of 'all rights,' or equivalent language, in the property or estate of a present or prospective spouse … is a waiver of all lights to elective share." The day before Mary Ann Taylor married Louis Taylor in Florida, they entered into a prenuptial agreement. The agreement stated that all property belonging to each spouse would "forever remain his or her personal estate," "said property shall remain forever free of claim by the other," and the parties would retain "full rights and authority" over their property as they would have "if not married." After Louis died without a will, his only child, Joshua Taylor, filed a petition in a Florida state court for a determination of the beneficiaries of Louis's estate. How much of the estate can Mary Ann elect to receive Explain. [ Taylor v. Taylor , 1 So.3d 348 (Fla.App. 1 Dist. 2009)]

Question 15

Wills Elnora Maxey became the guardian of Sean Hall after his parents died. In 1996, Maxey died, and her will left the two houses in her estate to Hall. Julia Jordan became Hall's new guardian, and when she died, her husband, John Jordan, became Hall's guardian. In 1998, when Hall was eighteen years old, he died intestate, and Jordan was appointed as the administrator of Hall's estate. The two houses had remained in Maxey's estate, but Jordan paid the mortgage and tax payments on the houses for Hall's estate because Hall had inherited the houses. Anthony Cooper, a relative of Maxey, petitioned the probate court to be appointed executor of Maxey's estate, stating that there was now no heir. The court granted the request. Jordan was not aware of the proceedings. Cooper then sold both houses in a sweetheart deal for $20,000 each to Quan Smith, without informing Jordan. The houses were then resold to JSD Properties, LLC, for $190,000. Learning of the sale, Jordan sued, contending that Cooper had breached his fiduciary duty and had lied to the court, as Maxey's will had clearly left the houses to Hall. Does Jordan have the right to demand that JSD return the property What factors would be considered in making this decision [ Witcher v. JSD Properties, LLC , 286 Ga. 717, 690 S.E.2d 855 (2010)]

Question 16

A QUESTION OF ETHICS: Wills.
Vickie Lynn Smith, an actress and model also known as Anna Nicole Smith, met J. Howard Marshall II in 1991. During their courtship, J. Howard lavished gifts and large sums of money on Anna Nicole, and they married on June 27, 1994. J. Howard died on August 4, 1995. According to Anna Nicole, J. Howard intended to provide for her financial security through a trust but under the terms of his will, all of his assets were transferred to a trust for the benefit of E. Pierce Marshall, one of J. Howard's sons. While J. Howard's estate was subject to pro bate proceedings in a Texas state court, Anna Nicole filed for bankruptcy in a federal bankruptcy court. Pierce filed a claim in the bankruptcy proceeding, alleging that Anna Nicole had defamed him when her lawyers told the media that Pierce had engaged in forgery and fraud to gain control of his father's assets. Anna Nicole filed a counterclaim, alleging that Pierce prevented the transfer of his father's assets to a trust for her by, among other things, imprisoning J. Howard against his wishes, surrounding him with security guards to prevent contact with her, and transferring property against his wishes. [ Marshall v. Marshall, 547 U.S. 293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006)]
(a) What is the purpose underlying the requirements for a valid will Which of these requirements might be at issue in this case How should it apply here Why
(b) State courts generally have jurisdiction over the probate of a will and the administration of an estate. Does the Texas state court thus have the sole authority to adjudicate all of the claims in this case Why or why not
(c) How should Pierce's claim against Anna Nicole and her counterclaim be resolved
(d) Anna Nicole executed her will in 2001. The beneficiary-Daniel, her son, who was not J. Howard's child-died in 2006, shortly after Anna Nicole gave birth to a daughter, Dannielynn. In 2007, before executing a new will, Anna Nicole died. What happens if a will's beneficiary dies before the testator What happens if a child is born after a will is executed