Wills and Trusts

Anthony and Beth married in 2012. They have four children: Charles,
David, Elizabeth, Frank. Beth passed away in 2020 without a will. Who
will take in her estate?

Suppose Howard has two children
by Wendy. Wendy has an additional
child from a previous marriage. If
Howard dies intestate, what will be
Wendy’s share under UPC s 2-102?
If it is Wendy who dies intestate,
what will be Howard’s share? Why
the different amounts provided
under s 2-102(3) and (4)?

Suppose H and W have been married for one year. H dies, survived by W and a brother,
but no parent. What is W’s share? Would the amount change if H and W had been
married for many years? Compare UPC s 2-203(b), page 554, which takes into account
the length of the marriage in determining the surviving spouse’s forced share, that is,
the mandatory share to which a spouse is entitled irrespective of the decedent spouse’s
will. Why is length of marriage relevant for the spouse’s forced share but not the
intestate share?

F has one child, A, by his first marriage, and two children, B and C, by his second marriage.
F is estranged from A and never tells his second wife or B and C of A’s existence. F and his
second wife die. Then C dies intestate, married to D but without descendants.
How should C’s property be distributed?
What if C died intestate, unmarried, and without descendants?

What are the main formalities for an attested will?

Bill created his will and signed it. He also had the will notarized. Bill is domiciled
in a jurisdiction that follows the UPC. Is Bill’s will valid?

Bill created his will and signed it. He also had the will notarized. Bill is domiciled
in a jurisdiction that follows strict compliance with the Wills Act. Is Bill’s will valid?

Sarah was in a critical condition and asked her friend, Alex, to help her draft her will. Unable to write herself, Sarah dictated her wishes to Alex, who typed them out. After Alex printed the document, Sarah read it and verbally confirmed its accuracy but was too weak to sign it. She passed away shortly after. Alex wants to submit Sarah's will for probate. What argument could Alex use to validate the will? What precedent might support this argument?
Sarah's brother intends to contest the will, claiming that Sarah's estate should be distributed according to intestacy laws. What would be his strongest argument? What case law might he cite to bolster his position?

At Testator’s death after a long illness a formal attested will that he executed a few days before is filed with the probate court in testator’s jurisdiction.
The will is properly executed in all respects and also contains a properly notarized self-proving affidavit. Despite that Testator, a widower, left three
adult children surviving him, his will devises all of his property to his caretaker. Child, one of testator’s children, challenges the will on the basis that
Testator lacked testamentary capacity. Child is prepared to present credible written evidence and expert testimony regarding two points. First, in
addition to Testator’s many physical ailments that rendered him bound to a wheelchair, Testator was diagnosed with Alzheimer’s disease (a
neurological disorder that causes dementia) approximately six months before his death. Second, although Testator had been an active investor most
of his life, at his will signing ceremony he was unable to recall all of the various companies in which he owned stock. Which of the following is the
most accurate statement regarding Testator’s legal capacity to execute the will?

• Testator’s diagnosis of Alzheimer’s disease is dispositive on the issue of whether Testator had the capacity to make a will and so the will
  should be set aside due to his lack of testamentary capacity.

• The will, having devised all of Testator’s property to his caretaker, is conclusive proof that Testator was unaware of the natural objects of his
  bounty, and should therefore be set aside due to his lack of testamentary capacity.

• Testator’s failure to recall all of the companies in which he owned stock is dispositive on the issue of whether Testator had the capacity to
  make a will and so the will should be set aside due to his lack of testamentary capacity.

• Under the facts presented, it is unclear whether Testator had the requisite legal capacity to make a will.

Answer explanation

The correct answer is D. Although jurisdictions vary in their tests for the legal capacity necessary to make a will, under a common test testators must
be capable of knowing and generally understanding the nature and extent of their property, the natural objects of their bounty, and the disposition
that they are making in the will. There is nothing in the facts here that conclusively indicates that Testator did not have these capabilities.
A is not the right answer because a person diagnosed with Alzheimer’s disease may still be able to meet the common test for testamentary
capacity.
B is not the right answer because devising one’s estate to another person does not necessarily mean that the Testator is not capable of knowing the
natural objects of his bounty.
C is not the correct answer because the test for understanding the nature and extent of one’s property is one of capability only. The fact that Testator
was unaware of all of the companies in which he owned stock is not proof that was incapable of being so aware.
Pages 271-281 of Sitkoff, Wills, Trusts, and Estates, Eleventh Edition

H and W are married to one another but each has children from a prior marriage. They go to a lawyer and have mutual wills
drawn up. H’s will provides that if W survives him, then she will receive all of his estate, but if W does not survive him, then his
estate will be distributed in equal shares among the children of H and the children of W. W’s will provides that if H survives her,
then he will receive all of W’s estate, but if H does not survive her, then her estate will be distributed in equal shares among the
children of W and the children of H. H dies first with his will intact, then W changes her will to provide that her estate will be
distributed only to her own children. After W dies, H’s son, S, brings an action against W’s estate contending that W breached a
contract with H not to revoke her will. Which of the following most accurately describes the legal status of S’s claim for breach of
contract?

• S’s claim is valid, if he satisfies the evidentiary burden for proving that a contract not to revoke existed.

• S’s claim is valid, unless W’s estate can rebut the presumption that a contract not to revoke existed.

• S’s claim is not valid, because contracts not to revoke a will are not generally enforceable.

• S’s claim is valid, because mutual wills automatically create an irrebuttable presumption not to revoke.

Answer explanation

The correct answer is A. Although contracts not to revoke wills are generally valid, in most
jurisdictions the mere fact of mutual wills does not create a presumption of contract. One alleging
that a contract exists would bear the burden of proving such a contract exists.
B is not the correct answer because the mere fact of mutual wills does not lead to a presumption of a
contract not to revoke.
C is not the correct answer because contracts not to revoke a will are generally enforceable, although
in some jurisdictions they must be in writing.
D is not the correct answer because in most jurisdictions the mere fact of mutual wills does not even
lead to a rebuttable presumption of a contract not to revoke, let alone an irrebuttable presumption.
Pages 264-269 of Sitkoff, Wills, Trusts, and Estates, Eleventh Edition