Tom Barton, age 42, an engineer at Rocketdyne, is currently single, with one adult child from a prior marriage, by the name of Tom, Jr. In 1995, Tom married Wendy, age 40, and an elementary school teacher, who also has one adult child from a prior marriage, by the name of Jenny, The parties, wanting to keep their respective estates separate, voluntarily signed a Prenuptial Agreement prior to their marriage.
On October 1, 1997, Tom signed a Quitclaim Deed transferring title of his four-unit apartment building in Hollywood, California, to his brother Reid, as Trustee for the benefit of Wendy. He then placed the Quitclaim Deed in his safe-deposit box. On the same day, Tom typed and mailed a letter to Reid, (who resided in New York), which read in part as follows:
"I have created a trust for Wendy. You are the Trustee. Upon my death, begin paying the income to Wendy on a quarterly basis, and distribute the principal of the trust to her when she attains the age of fifty-five. Thanks for the help."
Reid, an unemployed actor, received the letter on October 4, 1997, laughingly read the letter and stuck it in his dresser drawer with the comment, "me! A trustee! What a concept!"
On October 15, 1997, Tom executed a valid, typed and attested will, distributing the remainder of his separate property estate as follows:
"ARTICLE FIRST: I give Twenty-Five Thousand Dollars, ($25,000.00), to my friend, Tim Johnson, provided he survives me for a period of at least thirty days.
ARTICLE SECOND: I give my red Ferrari automobile to my brother, Reid - have fun! I also appoint you Executor of my estate.
ARTICLE THIRD: I give my Paine Webber Mutual Fund account as directed in a Memorandum located in my top desk drawer.
ARTICLE FOURTH: I give the rest, residue and remainder of my estate to my son, Tom, Jr."
In 1998, Tom received a letter from a former girlfriend,
stating that Rebecca, a child she had given birth to in December, 1997, was
Tom's daughter. Tom, shocked and unaware of any such child, wrote back, vehemently
denying that he was the child's father.
In February, 1999, Wendy unexpectedly passed away. While grieving Wendy's death, Tom regularly sought the advice of a fortune teller by the name of Anna.
In December, 1999, at one of their late-night sessions, Anna through her Tarot cards predicted that Tom, Jr. would become deeply involved in very serious criminal activity. Two weeks later, and based on Anna's prediction, Tom removed his 1997 will, crossed out ARTICLE FOURTH, in its entirety, and hand-wrote beneath it, the following:
"I give the residue of my estate to Anna. Thank you so much for showing me the light.
January 5, 2000
(signed) TOM BARTON"
On September 15, 2000, Tom and his friend, Tim, were simultaneously killed, when Tom's red Ferrari automobile was struck head-on by a drunk driver. After Tom's death, DNA testing confirmed that Rebecca was in fact his daughter.
The following typed document was found in Tom's top desk drawer.
Mutual Fund Account No. 07-450 at Paine Webber, having an approximate value of $500,000.00 shall be distributed, in equal shares, to my issue.
(signed) TOM BARTON"
At the time of his death, Tom's separate property assets included a home located in Pasadena, California, cash in the amount of $1,000,000, in several bank accounts located at Bank of America, Washington Mutual Bank and Wells Fargo Bank; and a Mutual Fund Account at Paine Webber, No. 07-450, valued at $500,000.00.
Following Tom's death, Reid found the will and Quitclaim Deed in his safe-deposit box.
You are currently a third-year associate with the law firm of Dewey, Cheatem & Howe. Reid has made an appointment with Mr. Howe in order to get some much needed advice. Mr. Howe has in turn, asked you to prepare a Memorandum concerning the following:
Was a valid trust created by Tom? DISCUSS
If the trust is valid, to whom should the trust property be distributed? DISCUSS
3. How should the remainder of Tom's estate be distributed? DISCUSS
GRADING KEY - SPRING 2002
WILLS ESSAY EXAM QUESTION
VALIDITY OF TRUST
1) Requirements for Express Trust
A) Mechanics of Creation
1) Actual vs. constructive notice to Trustee
2) Were Tom's words and acts sufficient to create a Trust?
DISTRIBUTION OF TRUST ASSET
2)Wendy predeceased Tom - Result?
A) Possible Resulting Trust as no contingent beneficiary
named B) Is anti-lapse statute applicable?
C) Conclusion - Does asset revert back to Tom's estate and pass to the residue or does Jenny take through anti-lapse?
ACTIONS BY TOM BARTON ON 1/5/2000
3)Revocation by Physical Act
A) Was Tom's act of revocation valid Under 6120(b)?
4)Can written statement be characterized as a Holographic Codicil?
A) Requirements under P.C. 6111
B) Mental Capacity?
C) Present Testamentary Intent?
1) Undue influence by Anna?
Discuss requirements and application to facts.
2) Fraud in the inducement by Anna?
Discuss requirements and application to facts
3) Mistake in the inducement?
4) Conclusion - effect on validity of Holographic Codicil
5) Dependent Relative Revocation
A) If Codicil deemed to be invalid, is D.R.R. applicable to cancel revocation of Article Fourth? Discuss
6) $25,000 Gift to Tim Johnson
A) General gift; identify
B) Anti-lapse not applicable-words of contrary intent
C) Result - gift fails
7) Red Ferrari
A) Specific gift - identify
B) Ademption by extinction - Discuss
C) If insured - proceeds distributed to whom?
8) Paine Webber Account
A) Specific gift - identify
B) Validity -
1) Can memorandum be incorporated by reference?
a) Discuss elements
b) Application of doctrine to facts
2) Can memorandum stand alone as a Codicil?
a) Discuss P.C. 6110 and 6111
C) Beneficiary of gift?
A) Which assets comprise the residue?
B) Who receives the residue?
1) If 1/5/2000 Codicil valid - residue to Anna?
2) If not valid and D.R.R. applies, reinstate Article Fourth so Tom, Jr. takes?
3) If not valid, but Court does not apply D.R.R. - argue constructive Trust remedy for Tom, Jr. based upon fraud or undue influence, or distribute per intestacy statutes.
WILLS ESSAY EXAM IS REBECCA AN "OMITTED CHILD"?
10) Define per Probate Code Section 21620
11)Application of Rule to facts
A) If 1/5/2000 Codicil valid, she is not omitted.
B) Even if 1/5/2000 Codicil is invalid, would gift under Article Third of the Will defeat such a claim?
PART II - WILLS ESSAY EXAM QUESTION
SUGGESTED TIME - 120 MINUTES
Tim Taylor is a recovered alcoholic, residing in Westwood, California. Tim was able to fight through his problems and became a successful real estate developer. Tim is divorced and has two children, namely: Judy, (age 20), and Jack, (age 18). Tim's current live-in girlfriend, Nancy, is an Alcoholics Anonymous" Group Counselor he met during rehabilitation. She has one daughter from a prior marriage by name of Sherry, (age 5).
On April 4, 2002, Tim executed a valid Will at his attorney's office, (Jason Butler), which reads as follows:
"1. I hereby give my cabin in Big Bear, California, and $100,000.00, to my girlfriend, Nancy.
2. I hereby give my residence, in Trust, to the Alcoholics
Anonymous Chapter in Westwood, California, to be used as a half-way house for
recovering alcoholics. I designate Northern Trust Bank as Trustee. The Trustee
shall have all of the Trustee powers set forth in the California Probate Code
at their disposal to properly manage the Trust property.
3. I hereby give my condominium, located at 200 Fifth Street, in Santa Monica, California, to my brother, Earl.
4. I hereby give the rest and residue of my estate as follows:
a. One-half thereof, to my daughter, Judy;
b. One-half thereof, to my son, Jack.
I hereby appoint my brother Ernie, as Executor of my Will to serve without bond."
After executing the Will, attorney Butler kept the original and gave Tim a copy for his file. At the time of Will execution, Tim's estate consisted of the following assets:
1. His residence located at 2020 Westwood Boulevard, Westwood, California.
2. A cabin in Big Bear, California, owned in joint tenancy with his brother, Ernie.
3. A condominium located at 200 Fifth Street, Santa Monica, California.
4. Three Hundred Thousand Dollars, ($300,000.00), in cash accounts located at Bank of America and Wells Fargo, both bank branches in Westwood, California.
On his way home from work one night, Tim passed by his daughter's college sorority house. It was a typical Friday "party night", but unfortunately, he spotted his daughter on the balcony, drunk as could be, waiving her bra in the air. Totally disgusted, Tim went to the nearest Starbucks, and hand wrote and signed the following letter:
"Dear Jason: Please cancel my daughter's gift in the Will and give it to Nancy's daughter, Sherry. I am going on a business trip, and when I return will sign whatever legal document is needed.
s/ TIM TAYLOR"
Tim then proceeded to then drop off the letter at his attorney's office.
On Monday, 8/7/03, attorney Butler read the letter and immediately retrieved Tim's original Will from the safe. He then crossed out the gift to Judy, initialed the change, and thereafter prepared a Codicil for Tim to sign, giving the one-half interest in the residue to Sherry.
Upon returning from the business trip, Tim unfortunately "fell off the wagon" and started drinking again. This led to confrontations with his children and vitriolic arguments with Nancy; which escalated to violence. On November 4, 2003, one such argument ensued, during which time Nancy grabbed a golf club and delivered a fatal blow to Tim's head.
At the time of Tim's death, his estate consisted of the following assets:
1. His residence located at 3700 Camden Place, Long Beach, California, (his residence in Westwood was sold in August, 2003).
2. His cabin in Big Bear, California.
3. A Promissory Note in the amount of $500,000, which represents the balance of the purchase price for the condominium in Santa Monica, which was sold in September, 2003, for $800,000.
4. Cash in the total amount of $600,000, comprised of his original cash funds plus the $300,000 down payment received for the sale of the condominium.
You are a third year associate at the Law Firm of Smith & Wesson. You have met with Ernie, the named Executor who has provided you with the following information:
A. Nancy confessed and has been convicted of second degree murder.
B. There is no longer a Westwood Chapter of Alcoholics Anonymous. The facility which housed this chapter has now been taken over by a private abortion clinic. There is, however, a large Alcoholics Anonymous Chapter in downtown, Los Angeles.
C. The following documents were located by Ernie for use in the probate proceedings:
i. Tim Taylor's original Will;
ii. An unsigned Codicil to the Will prepared by attorney Jason Butler;
iii. Tim's copy of the Will which had the gift to Judy crossed out, and below it, in Tim's handwriting, was the following notation:
"The gift above to my daughter is revoked in favor of Sherry.
8/14/03 s/TIM TAYLOR"
PLEASE PREPARE A MEMORANDUM FOR THE SENIOR PARTNER CONCERNING:
1. HOW SHOULD TIM TAYLOR'S ESTATE BE DISTRIBUTED?
GRADING KEY- WILLS ESSAY EXAM 2006
WILLS ESSAY EXAM TRUSTS and ESTATES
I LETTER TO ATTORNEY BUTLER DATED 8/4/03 -
1) Revocation under PC Section 6120(a) -
a) Discuss application of PC Section 6111 in conjunction
with PC Section 6120(a).
b) Did Tim's words reflect present intent to revoke?
Conclusion - Formalities of PC Section 6111 satisfied, but words themselves did not expressly revoke the gift. The words used requested the attorney to revoke the gift, thus no present intent to revoke per PC Section 6120(a).
2) Was gift to Sherry valid? -
a) Letter did satisfy formality requirements of PC Section 6111 for a Holographic Codicil, but words did not reflect present Testamentary intent.
Conclusion - Tim's words represented an instruction to prepare a Codicil in the future, which Tim would sign. Thus gift of one-half residue to Sherry not valid.
II WILLS ESSAY EXAM ACTIONS BY ATTORNEY BUTLER -
3) Revocation under PC Section 6120(b) -
a) Act of Revocation (cancellation) by Butler was done at Tim's direction but not in Tim's presence.
Conclusion - Original gift to Judy still Valid, as revocation by Butler ineffective.
III WILLS ESSAY EXAM TIM'S ACTIONS PERTAINING TO COPY OF WILL -
4) Revocation under PC Section 6120(b)
a) Act of cancellation performed on copy of Will was ineffective; must be on original Will.
5) Revocation under PC Section 6120(a)
a) Tim's notation meets requirements under PC Section 6111,
but standing alone lacks sufficient clarity as to meaning of "the Gift
6) Was gift to Sherry valid?
a) Notation could qualify as a new Holographic Codicil dated 8/14/03, per PC Section 6111, but again, standing alone lacks clarity as to the nature of the distribution to Sherry.
7) Incorporation by Reference - PC Section 6130
a) Discuss requirements for use of doctrine.
b) Analysis - Copy of Will was in existence prior to handwritten notation, notation was placed directly on the copy and below the crossed-out gift; so intent to incorporate and specific document to be incorporated appears satisfied.
Conclusion - Incorporation by reference applied to facts validates the revocation and made distribution to Sherry.
IV WILLS ESSAY EXAM DISTRIBUTION -
8) Cabin in Big Bear, California
a) Fails as a specific gift as joint tenancy supersedes provisions in a Will therefore, Ernie holds 100% of cabin as the surviving joint tenant. Also fails per P.C. 250.
9) $100,000 General Gift to Nancy -
a) Fails as a general gift as Nancy is barred from inheriting under PC Section 250. Even if Nancy was kindred, Anti-Lapse not applicable under PC Section 250, general gift lapses.
10) Santa Monica Condominium -
a) Specific Gift to Earl was sold prior to death, thus discuss application of "Ademption by Extinction".
b) "Intent View" followed in California, thus use PC Section 21133.
Conclusion - Earl is entitled to receive Balance of purchase price evidenced by $500,000 Promissory Note; but not entitled to $300,000 down-payment paid prior to Tim's death.
11) Was Valid Charitable Testamentary Trust Created by Tim?
a) Discuss necessary elements for a Charitable Trust.
b) Discuss "acts of Independent Significance"
which could be used to identify and complete the gift to the Trust. ("any
c) Discuss doctrine of "Cy Press" in order to determine viability of an alternate beneficiary.
Conclusion - If General Charitable Intent is found, Alcoholics Anonymous of Long Beach will be beneficiary. However, if Specific Charitable Intent is found, then the Trust fails.
12) Residue -
One-half to Jack, one-half to Sherry
Assets - $600,000 (original cash funds plus
$300,000 down-payments); $100,000 from Nancy's
Failed General Gift, and possibly Long Beach Residence if
Specific Charitable Intent is found.
PART II - WILLS TRUSTS AND ESATES ESSAY QUESTION
(SUGGESTED TIME - 120 MINUTES
Bert Toon, a resident of Pasadena, California, is currently unmarried and has two adult children from a prior marriage, whose names are Ken and Barbie. On October 1, 2000, Bert prepared and signed a typewritten Will distributing his assets as follows:
1. I give my gold Rolex watch to my son, Ken, provided he survives me for a period of at least thirty, (30) days.
2. I give my red 2000 Corvette automobile to my daughter, Barbie, provided she survives me for a period of at least thirty, (30) days.
3. I given Ten Thousand Dollars, ($10,000.00), to my loyal and trusted secretary, Eva.
4. I give my gun collection to my brother, Ernie, to be distributed as we have agreed.
5. I give my stock account at Merrill Lynch, as directed in a "Memorandum", which will be in my safe-deposit box at Bank of America.
6. I give the residue of my estate, in equal shares, to my children.
Bert's friend, Manny and Eva witnessed Bert's signing of the Will.
On December 1, 2001, Bert wrote and delivered to his attorney, Henry Howe, the following note:
"I hereby modify my Will as follows:
A) I give to my girlfriend, Wendy, the $500,000 proceeds from my Provident Life Insurance policy.
B) I give $25,000 to my alma mater, USC.
C) I appoint my attorney, Henry Howe, as Executor of my estate.
SS/ BERT TOON
On December 1, 2002, Wendy gave birth to Bert's third child by the name of Jennifer. Approximately one week later, while on a business trip, Bert telephoned his attorney and asked him to cancel the gift to USC. Henry Howe retrieved the document; drew a double line through the specific paragraph containing the gift, placed his initials beneath it; and then returned the document to its file.
On December 1, 2003, Bert and his daughter, Barbie, were
killed during a car jacking. The assailants escaped with the gold Rolex watch
and the red 2000 Corvette, neither of which were recovered. The Corvette was
insured with Allstate, but the Rolex watch was not insured. Bert died at the
scene, while Barbie died five days later.
For probate purposes, Henry Howe had in his possession the original Will, Bert's handwritten note dated 12/1/01, and a typed "Memorandum", signed by Bert, dated June 1, 2003, which gave the stock account to the National Rifle Association. Bert's brother, Ernie also revealed to Henry Howe that the intended beneficiaries of the gun collection were certain members of Bert's local Gun Club.
At the time of his death, Bert owned the following assets:
1. A gun collection;
2. Bert's home in Pasadena, California;
3. The Provident Life Insurance Policy, which designated
Bert's ex-wife, Sophia, as primary beneficiary;
4. The Merrill Lynch stock account;
5. Cash located at Bank of America in the amount of $200,000.
Bert is survived by his son, Ken, his daughter, Jennifer, his brother, Ernie, his ex-wife, Sophia, his girlfriend, Wendy, and Barbie's daughter, (Bert's grandchild), Megan.
WILLS ESSAY EXAM PLEASE DRAFT A MEMORANDUM TO THE SENIOR PARTNER OF
YOUR LAW FIRM DISCUSSING:
1. HOW BERT TOON'S ESTATE SHOULD BE DISTRIBUTED AND WHY.
GRADING KEY-FALL 2005 WILLS ESSAY EXAM AND TRUSTS
I DOCUMENT DATED 10/1/00
1) Validity - No apparent problem with capacity; Testator had testamentary intent, and formalities satisfied under P.C. 6110
a) Even if Eva is an interested witness, Will is not invalid per P.C. 6112
II NOTE DATED 12/1/01
2) Validity as a Codicil - Discuss requirements under P.C. 6111
a) Testator appears to have capacity, testamentary intent, and satisfied formalities under P.C. 6111, therefore, note is a valid Codicil.
III REVOCATION OF GIFT TO USC -
3) Discuss P.C.6120(B) -
a) Conclusion - Henry Howe improperly revoked the gift, as revocation was not performed in Testator's presence, therefore, gift to USC is not cancelled.
IV WILLS ESSAY EXAM GIFT OF ROLEX WATCH - SPECIFIC
4) Discuss Ademption by Extinction
a) Conclusion: - Gift not in estate at death, and tracing statutes not available therefore, gift to Ken is adeemed.
V GIFT OF 2000 CORVETTE AUTOMOBILE - SPECIFIC GIFT
5) Ademption by Extinction, Tracing Statute P.C. 21133 does apply, so insurance proceeds Available in place of Corvette
6) Lapse/Anti-Lapse - Discuss
a) Barbie did not survive Testator for at least thirty days, so gift lapses.
b) Anti-Lapse Statute not applicable to give Megan the
insurance proceeds(words of contrary intent present, e.g.survival period). So
proceeds pass into the residue.
VI GIFT OF $10,000.00 TO EVA - GENERAL
7) Republication by Codicil - Since Will of 10/1/00 was "republished", to date of Codicil, Eva was no longer an interested witness as of 12/1/01, so her gift is not purged under P.C. 6112.
VII GIFT OF GUN COLLECTION - SPECIFIC
8) Semi-Secret Trust - Discuss
a) Conclusion under California Law, Parole Evidence is admissible to reveal identity of Beneficiary, (members of Testator's Gun Club), and the gift would be enforceable Through the use of a Constructive Trust.
VIII MERRILL LYNCH STOCK ACCOUNT - SPECIFIC GIFT
9) Can specific gift be completed through use of incorporation by reference per P.C. 6130?
10) Can specific gift be completed under Doctrine of Acts of Independent Significance? Discuss
11) Does Memorandum qualify as a Codicil under P.C. 6110 or 6111? Discuss
Conclusion - Specific gift fails and the stock Account passes into the residue, as none of the above listed methods create a valid completed gift.
IX GIFT OF INSURANCE PROCEEDS TO WENDY - SPECIFIC GIFT
12) Beneficiary designation on life insurance policy controls, and cannot be modified by Will alone. Therefore, Testator's x-spouse takes the insurance proceeds.
X WILLS ESSAY EXAM DISTRIBUTION OF RESIDUE
13) Class gift to children; included in class are Ken, Barbie, and Jennifer.
14) Jennifer, even though born after Testator's last testamentary instrument, is not "omitted" per statute, since she is included in the class.
15) Stock account, insurance proceeds from Corvette, home in
Pasadena, and cash represent the assets in the residue which will be divided
one-third to Ken, one-third to Jennifer, and one-third to Barbie. There was no
survival period attached to Gift, so Barbie takes, having survived Testator by
clear and convincing evidence.
MINNESOTA WILLS ESSAY EXAM 2000
Before entering the hospital for surgery on April 30, Testator typed a document entitled "My Will." Testator immediately signed this document. When Testator went to the hospital on April 30, he brought this typed and signed document with him. At the hospital he showed the document to Nurse A and Nurse B. Each of them privately examined him at separate times during the day. As each Nurse examined Testator, he pointed to his signature on the document and said "this is my signature, please witness my will." While both nurses witnessed the will by signing it, neither of them saw the other sign the document. Rather, Nurse A witnessed the will on May 1, and Nurse B witnessed the will on May 2.
On May 3, while recovering from surgery, Testator's friend, Friend, visited Testator. Testator told Friend that "my affairs are in order, I'm not afraid to meet my maker. Take this. It's part of what I want you to have." Testator then handed Friend a check for $25,000 which Friend cashed on May 4.
Testator died on May 5. His will was offered for probate in the appropriate court having jurisdiction of Testator's estate. In addition to naming an executor, the will provided:
1. I give $10,000 to Aunt to be used to send her child, Denise, to a private school.
2. I give $50,000 to Friend, if he survives me.
3. I give the residue of my estate to Son and Daughter, if they survive me, the surviving issue of either of them to predecease me, to take his or her share.
Testator was survived by Aunt, her child (Denise) and by Friend and Daughter. Unbeknownst to Testator, Son died on May 4. Son's only living blood relative who survived Testator was Son's child, Grandchild. Testator's estate is valued at $100,000.
1. Is Testator's will entitled to be probated? Explain.
2. Assuming the will is entitled to be probated, what are the rights of Aunt and Denise, if any, in the Testator's estate? Explain.
3. Assuming the will is entitled to be probated and that $10,000 is distributable to Aunt, how should the balance of Testator's estate be distributed? Explain.
REPRESENTATIVE GOOD ANSWER WILLS ESSAY EXAM
Entitled to Probate?
There are formalities that must be met to form properly a
We've got issues here with only a couple. There is testamentary intent (titled will, referred to by Testator (T) as such to nurses and friend), a writing, sanity/lucidity (he's going to the hospital for surgery, apparently competent), etc. The will is not self-proving, however, as the signatures of the witnesses are not executed and notarized with "self-proving" language. Hence, the formalities will not be presumed.
The T properly instructs each witness to "witness my will," in his presence (which is required only in some states), under either the scope of vision presence test or the conscious presence test. Under either, it is enough that the witness sign after the T affirms his signature to them. He has done this ("this is my signature").
In addition, the signing of all must be reasonably close in time. April 30, May 1 and May 2, probably satisfy this. Under the better rule, the two witnesses needn't sign in the presence of each other. This is the UPC rule. Only if the jurisdiction requires this will the will be invalid for this reason.
Also, generally, the will must conform to the state of residency or execution at time of execution or residency or death at time of death. This increases the chance that any non-conforming formality is valid under one of those state rules and hence valid in the state of probation.
There do not appear to be any contestable defenses on the facts presented. The T drew his own will (no undue influence suggested) and did not leave out the natural objects of his affection. Neither Nurse took as a devisee under the will (formerly voiding that gift, now the better rule not). So, probate is proper.
The residue is properly disposed of, and so the Aunt and
Denise, relatives, do not stand to take under the will. (I assume the will is
probated, and so their status as heir-expectants is irrelevant).
The $10,000 will go to the Aunt, to do with as she wishes. The terms do state, "to be used to send her Child, Denise, to a private school" are most probably precatory. It is kind of general language; the T is not indicating that the money should only go to them if Denise goes to a particular school. If so, (precatory) then Denise has no rights and the money is Aunt's.
On the other hand, even though there are not explicit words of "trust" (trust, trustee and beneficiary are not in the will), the phrasing is pretty specific, of the T's intent, and a trust may be created. If so, Denise will have rights as a trust beneficiary, enforceable against Aunt as trustee, to have the res (principal $10,000) and income used for (and only for) a private school education. (To the extent this is not done – the money not used up; it will fall back to the residuary takers under the will)!
WILLS ESSAY EXAM Balance of Estate.
Friend. The F survives and will take. The issue is whether the $25,000 check is in satisfaction of the testamentary gift. For intestate advancements, there is a writing requirement – and I believe the majority rule requires a writing for satisfaction of testate gifts as well. If so, the will could refer to the possibility the testator could leave some written acknowledgement or the Friend could acknowledge it in writing. On the facts, only the check is present – is there a notation on the check mentioning this?
So, if in satisfaction, the $25,000 check will offset the $50,000 gift, leaving the F to take $25,000 more from the estate. If not in satisfaction, and assuming the F is not much of a friend and doesn't admit it or renounce half of his gift, F will take $50,000. So, $100,000 - $10,000 (Aunt) - $50,000 (F) = $40,000.
The last $40,000 will be the residue. The gift is to Son (S) and Daughter (D) as a class gift, with specific and express right of representation in the "surviving issue" of "either of them to predecease me."
The gift to the son looks like it lapses, because the son is alive at the time of execution (May 2. Son dies May 4), but dead at the T's death. But, there is no need to worry of lapse and antilapse here (though the result is the same on these facts because the S's heir-at-law, Grandchild, is the taker under the antilapse statute (if existing); which is a result that matches the valid testamentary gift). Instead, the will provides for the death of D or S. S's son, Grandchild, will take, according to the will, S's share. ("to take his or her share"). The wording indicates that D retains her share under the will.
So, Grandchild gets $20,000, and D gets $20,000, from the equal class gift to S and D, via the will.
Margery Adams had one natural child, a daughter, Betty Adams. Twenty
years ago, Margery agreed to care for the five year old son of a
friend, Martha Wright, who was dying of cancer. The five year old,
Jimmy Wright, moved into the Adams' home at the request of his
mother. Two days before Martha's death, Margery visited Martha in
hospice and promised that she would raise Jimmy as her own.
Betty left home when she turned 18 and only contacted her mother when
she needed money. Jimmy, on the other hand, remained at home until
he completed college. When Margery developed a terminal illness,
Jimmy moved back home and became her primary caregiver. Margery was
dependent on Jimmy for the last month of her life. During this time,
Betty rarely called and never visited.
At the time of Margery's death, Jimmy was twenty-five and Betty was
twenty-seven. Margery died without a will; however, surprisingly,
she left an estate valued in excess of two million dollars. Betty
claims the entire estate as the sole child. Jimmy has made a claim,
contending that there was an equitable adoption.
Pretrial discovery revealed the following facts: Margery and Jimmy
had a very close relationship from the time he first came to live
with Margery and Betty. While in school, Margery attended mother-son
events with Jimmy and always referred to him as "my boy." She wore a
mother's ring with the birthstones of both Betty and Jimmy. However,
Jimmy was never formally adopted, nor was any attempt made to adopt.
Jimmy has always retained his birth mother's name (Wright).
Please perform a legal analysis with regard to the issue of whether
Jimmy will receive a portion of Margery's estate.
Wills Essay Exam Student Answer Supposedly a B+
Whether Jimmy Wright, who was raised by Margery Adams as adopted son, had become adopted under the principle of equitable adoption, and whether he is entitled to receive a portion of Margery's estate.
In Barlow, the court applied the rule of equitable adoption to determine heirship. The court held that the decedent's adopted son was the sole heir under the principle of equitable adoption because there was a contract between the adoptive parents and the biological mother, and that the biological father's conduct established consent. See, Barlow v. Barlow, 170 Colo. 465, 463 P.2d 305 (1969). This case is analogous to Jimmy Wrights (Jimmy) case, because, like Arthur N. Barlow, Margery Adams (Margery) died without a will, leaving behind a sizable estate. And Jimmy became Margery's son when his biological mother, Martha Wright (Martha), made an oral agreement with Margery to take full custody of Jimmy. Unlike the Barlow case, Martha was dying of cancer, and asked Margery to care for Jimmy, which Margery promised she would raise Jimmy as her own. This case is distinguishable from the Barlow case in that Jimmy is not the sole heir (i.e. Margery has one natural daughter).
The question is whether Jimmy is entitled to receive a portion of Margery's estate? Yes. The rule in Barlow for equitable adoption states: Equitable adoption is a situation where no statutory adoption exists, but an oral contract is made and executed. The court also said, that, in determining heirship, once the person whom is contracting to adopt has past on, the ruling should benefit the child. Assuming no adoption regulation is in existence, from the facts, Margery had made an oral contract with Martha twenty years ago when she agreed to care for Jimmy as her own. Jimmy was five year's old at the time Margery agreed to care for him, and he is now 25, so this contract has been fully performed, that is, Margery has raised Jimmy. Since Margery has past on, the ruling should benefit Jimmy. See, McClain v. Taylor (In re Estate of Jenkins), 904 P.2d 1316 (Colo. 1995).
Furthermore, "the doctrine of equitable adoption comes under the category of equity; consent can be established by conduct." On point about consent, there is enough evidence to support a finding that the biological mother consented by conduct. Martha requested that Jimmy move in with Margery. And Margery promised to raise Jimmy as her own, which is further supported by discovery findings (e.g. attendance of mother-son events, reference to Jimmy as "my son," and a ring with Betty's and Jimmy's birthstone). From this we can conclude that Jimmy should be able to receive a portion of Margery's estate because he was equitably adopted. However, further investigation should be done on the biological father.
Lastly, the question is whether Betty Wright (Betty), Margery's only natural daughter, can claim her biological mother's estate as the ultimate beneficiary of that estate. The Colorado statute on share of inheritance states: Any part of the estate […], if there is no surviving spouse, the estate transfers to the individual's designated as follows: To the deceased's descendants, as calculated among each individual involved, and divided equally among each generation. C.R.S. § 15-11-103 (1). Because Margery died with out a will, and there appears to be no other surviving spouse, her estate must be divided equally among Betty and Jimmy. Thus, no, Betty may not claim her mother's estate as the ultimate beneficiary of the estate because Jimmy was equitably adopted he also is an heir to the estate.
In conclusion, since Jimmy was the primary care provider when Margery was terminally ill (she was dependant on Jimmy, not Betty), he should be entitled to at least half of Margery's estate or more. An argument might be made that since Betty never visited, and only called to ask for money (though those times were rare), Jimmy should be awarded for time spent caring for Margery.
Comments on Wills Essay Exam Trusts and Estates
After you have looked through these you need to review our article Basic Rules for Taking a Law School Essay Exam
Then take a look at the student essay from Colorado and see how it could have easily gone to a A. He started out correctly by stating the rule and citing the case. However he then made one of the most common mistakes. He came to a conclusion before arguing the case. He should have argued one side and then the other. There is no mention of any argument on Margie's side. Then he failed to use all of the facts. Take a look back and see if you can pick out the ones he failed to mention. The professor's grading key likley had points for them.
This is why I recommend highlighting all the facts and then crossing them out as you use them in your essay. Print out the question and try it on your own.
Then he made an equitable argument on a wills essay exam. Shows thinking like a lawyer but probably did not earn him any points. This question actually could show up in Family Law or Equity.
Every law school professor is different but here is a suggestion on how to start your wills essay exam answer.
First assume that all of the documents fail and that the estate passes by intestacy. Quote the rule and cite the state statute. Then do the analysis. This is usually the easiest part and gives you some time to become familiar with the facts.
Next analyze the newest will. Expect to discuss revocation, revival and DRR along with abatement and ademption. Then assume that the court finds this will is not valid and go to the next document. Remember that revocation of a will also revokes all codicils to that will (but not visa-versa)and a will can be republished by codicil. This is usually important when looking at a pretermitted child or omitted spouse. Undue influence is also an often tested issue. Watch your dates since every one of them will be important and good luck with your wills essay exam.
Wills are state specific so you have to be very careful in using study aids. Most of them are based on the Uniform Probate Code so you need to know the differences between the UPC and the probate laws of your state.
WILLS ESSAY EXAM QUESTION (One Hour)
Arnold Terminated died on December 6, 2000, survived by his wife U.R. and his daughter I.M., who was born on May 31, 1997. I.M. was not U.R.’s daughter. A will dated 1988 was found in Arnold's desk drawer. This will gave everything Arnold owned to his wife. Next to the will was a note dated May, 1990 stating "I hereby revoke my 1988 will signed Arnold." The note was witnessed by Arnold's cousin George Killian and his boss Sharon Stonecold. Attached to the note, was another note in Arnold’s handwriting, signed by Arnold, but not witnessed, stating that he had changed his mind, and that he did not want to revoke his 1988 will, but instead wanted to have it revived. That note was dated June, 1998.
Also in Arnold's desk drawer was found a will dated 1999. That will gave everything Arnold owned to "Sharon Stonecold and her heirs and assigns.” Sharon had convinced Arnold to leave his wife in 1998 and move in with her. Arnold never officially divorced his wife, but he was afraid not to move in with Sharon, because she was his boss. Besides, Sharon handled all of Arnold's property for him. The 1999 will was properly executed according to SC law (Arnold was a SC resident), but you have heard that Arnold was clucking like a chicken during the execution of the will.
Sharon Stonecold died in a 1999 hunting "accident." She was survived by her son Buddy. Buddy was charged with having killed Sharon, but he was never actually convicted in a criminal court. Buddy was not married, and he had no children.
WILLS ESSAY EXAM ANSWER OUTLINE FROM PROFESSOR
Is the 1999 will valid? It was properly executed (given in the facts), but there are some issues regarding its validity. First, Arnold was clucking like a chicken. That might raise an issue of capacity.
In order for Arnold to have capacity, her must:
1. Know the nature and extent of his property; 2. Know the natural objects of his bounty; 3. Know that he is making a will; and 4. Know how 1-3 relate to each other.
The fact that Arnold is clucking, does not necessarily mean that he lacks capacity. A challenge that is more likely to be successful is that Sharon exerted undue influence.
Undue influence occurs when the testator’s desires are supplanted by those of another. In order to have undue influence, it is necessary to show that there was:
1. A confidential relationship 2. Access to the testator (opportunity to exert influence) 3. That the testator is susceptible to influence (eg is in a weakened state) 4. That an unnatural disposition has taken place.
In this problem, Sharon was Arnold’s boss/lover, so she had a confidential relationship, and she had access to Arnold. Clearly, Arnold was afraid of Sharon, so he was susceptible. Finally, even though Arnold was married, he gave everything to Sharon (unnatural disposition). The unnatural disposition is the most important factor in determining undue influence. In this case, it is likely that a court would find that Sharon has exerted undue influence. The will should be voided. [Don’t forget to mention that Arnold’s spouse can take her elective share of 1/3 of Arnold’s estate!!!—If the testator is married, you must mention elective share.]
If the court does not find lack of capacity or undue influence, however, Sharon would take everything in Arnold’s estate. Sharon was killed by Buddy, however, and thus she predeceased Arnold. Since she is not related to Arnold, the gift to her will lapse, and the antilapse statute will not apply. Thus, Buddy will not take in Sharon’s place, unless a court interprets the gift to Sharon and her heirs and assigns ti mean that Arnold meant for her heirs to take, if she predeceased him (this is not likely to happen). Even if the gift to Sharon does pass to Buddy, he could be prevented from taking anything from Sharon, under the slayer statute. If Buddy is convicted of feloniously killing Sharon, he will not be able to inherit from her or through her. The same result would occur even if Buddy is not criminally convicted, a civil court could (by preponderance of the evidence) find that he unlawfully and intentionally killed Sharon.
The 1988 will was validly executed according to the facts. The question is, has it been revoked, and if so, has it been revived? Of course, all of this is moot, if the 1999 will is valid. If the 1999 will is not valid, then the issue is was the 1988 will revoked by the 1990 document. In order to be a valid written revocation, it must be in writing, and executed with the same formalities as a will. SC requires that wills be signed by the testator, and witnessed by at least two witnesses. This has happened here (is Sharon an interested witness? Probably not, because she is not named in the later will until 1999). Accordingly, the will seems to have been properly revoked. In 1998, Arnold signs a document saying that he wants to revive his 1988 will. The writing will be ineffective, because it is not witnessed. (I could have made this essay more complicated by making the revival validly execute—doing so would republish the will as a 1998 will, and the child would not be pretermitted—see discussion below.)
If the 1999 will is not valid, and the 1988 will is revoked, Arnold dies intestate, and his wife gets ½ of the estate, while his daughter takes the other half.
If the 1988 will is valid, and the revocation for some reason is not good, then the wife would take under the will. The daughter, however, was born or adopted after the making of the will, so she is pretermitted. She would, therefore, be entitled to an intestate share of the estate (which would come from the wife’s share given through the will—this is abatement).
Either way, daughter gets ½ and wife gets ½.
ASK AN ATTORNEY YOUR LAST WILL AND TESTAMENT QUESTION
One of the most common arguments between family members is who has the right to make the decedent's funeral arrangements. If your client wants his executor (personal representative) to be responsible, then consider adding the following language into their will.
My executor shall have the power to employ and make the necessary arrangements for the proper disposition of my final remains in accordance with any written statement by me or, if none, at my Executor’s sole discretion except that it is my desire that I be cremated.