Deck 43: Wills, Inheritances, and Trusts

Question 1

What capacity must people have in order to make valid wills?

Answer 1

Wills:
In order for a will to be valid it must adhere to the following:
1. The testator must have capacity.
2. The testator must be free from duress, fraud and undue influence.3. Must be in writing with the exception of a nuncupative will. The writing may take any form and combination of forms.
4. Must be signed by the testator and 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.

Question 2

Alma Rodowicz leased property to United Social and Mental Health Services Inc. for ten years. The written lease allowed United to renew it only by notifying Rodowicz within six months of the expiration of the lease or any extension of it. Three days before the expiration, Rodowicz's attorney wrote United that the parties had come to an agreement that United could continue as a tenant at a reduced rent. United never responded but referred to the new lease as a month-to-month tenancy and paid the reduced rent for five years. United then notified Rodowicz that it planned to renew the lease for five more years. Rodowicz demanded United vacate and pay an increased monthly rental until it vacated. United protested but paid the increased rent and sued for enforcement of the lease. Had United renewed or extended the lease? [United Social and Mental Health Services Inc. v. Rodowicz, 899 A.2d 85 (Conn. App. Ct.)]

Answer 2

The tenancy of Company U can be termed as a new lease.The old lease cannot exist anymore as there were no formal meeting of the two parties where they came into agreement upon extending the old lease. It can be termed as a new lease with ambiguous terms where the terms are not clearly mentioned or agreed upon.
Hence there can be no enforcement of the old lease.

Question 3

Stehlik lived next door to her aunt, Czerwinski, in the other half of Czerwinski's duplex. Czerwinski put Stehlik on her bank account as a joint tenant. Stehlik never contributed any money to the account. Stehlik drove Czerwinski to appointments, the grocery store, and handled some banking transactions for Czerwinski until Czerwinski's death. Did Czerwinski intend to make a gift of the funds to Stehlik upon Czerwinski's death, or was this account for convenience only?

Answer 3

Joint tenancy:
In case of joint tenancy the ownership will be passed on to one party in case of death of another party. In order to be a joint tenant each of the owners should have an equal right to the property.
Fact: C put S who lived next door, as a joint tenant on bank account. However, S did not contribute any amount to the bank account but drove C for the grocery purchases, appointments and maintain transactions of C.
Outcome: C did not have the intention of making S as joint tenant of the property; it is only for convenience sake C is acting so. This can be established based on the fact that C had not created any ownership interest in the property for S by writing a will. Mere mention in the bank account as a joint tenant is not sufficient proof to get the estate and the funds in his name. Thus, C is not having the intention to gift property to S.

Question 4

Ruth Dineen died intestate leaving her son, James Dineen, and daughter, Marie Dineen, as heirs. The heirs' relationship had been contentious, and a lawyer, Richard LeBlanc, was appointed personal representative of Ruth's estate. James owed the estate for loans secured by two mortgages. He alleged that the mortgages should be satisfied from the assets of the estate and that interest should stop accruing on them. LeBlanc was concerned about James's propensity to litigate and thought the estate should keep enough liquid assets to cover any litigation costs. The probate court issued an order finding that LeBlanc had acted reasonably in allowing interest to accrue on the mortgages and not satisfying them with estate funds until final settlement of the estate. James appealed. Had LeBlanc acted properly?

Question 5

Duskin died a few weeks after executing a will, in which he left his two daughters each 10 percent of the Mahalia Jackson Family Corporation (MJFC). A few years later, Lott presented the court with a document entitled, "Irrevocable Last Will and Testament," and dated ten years prior to the probated will. The "Irrevocable Will" was signed by both Duskin and Edison Lazard, as president and vice president of the MJFC, and purporting to bequeath all rights to MJFC. Was the second will valid? Was the first will irrevocable? Was it even a will?

Question 6

What is the difference between distributing property per capita and per stirpes?
b. When would a per stirpes distribution be required?

Question 7

What are two common restrictions on the right to dispose of property by will?

Question 8

Adolph Liebig owned several parcels of real property. As part of an estate plan, Adolph recorded a Deed of Trust purporting to create 100 "Certificates of Beneficial Interest" for ease of distribution. By its terms, the trust would terminate in 25 years, and the assets were to be distributed to the holders of the 100 shares. Adolph distributed 50 shares to his wife, Valeria, and 50 shares were divided among Valeria and their three sons. The following year, Adolph died. Over time, Valeria gave her 50 shares equally to the three sons. No shares were ever given to the couple's three daughters. At the end of 25 years, Valeria and her son, who then were trustees of the trust, filed an accounting, received court approval, and wound up the trust. The real estate was deeded to the three sons as tenants in common. A few years later, one of the daughters sued to set aside the trust and quiet title in the six siblings equally. The daughter claimed that the trust was defective and void, so that upon Adolph's death the property should have passed to his heirs at law when he died. Were the daughters entitled to inherit anything? [Newman v. Liebig, 810 N.W.2d 408 (Neb.)]

Question 9

Irv Groat filed a five-line document as a codicil to the will of Frank Halgas. It read,
January 21, 20--
Upon my death I will transfer all of my stock to Irv Groat for the sum of $10,000.00.
A copy of the check should be furnished to MicroLambda to initiate the transfer.
11eb639c_7f72_582b_9493_bb7f4cdd4ecd
Should the court admit the document to probate?

Question 10

Anderson lived to the age of 98 in her own home with the assistance and support of her grandsons who lived with her. At her death, the grandsons offered a will for probate, naming them personal representatives and sole beneficiaries of the estate. Anderson's daughter disputed the will on the grounds of undue influence. The grandsons had not only assisted Anderson in daily living, such as buying groceries and paying bills, but also had held Anderson's power of attorney, made appointments for her with her attorney, and taken her to the attorney's office. Testimony from a state worker who made surprise visits to the home declared Anderson to be well cared for and "very alert to be a ninety-eight-year-old woman." Anderson's life-long friend, Mary, testified that Anderson told her she did not want her son-in-law "to get his hands on any of her property." In addition, the power of attorney was never used, and no substantive changes were made to Anderson's will. Should it be admitted to probate?

Question 11

Eric Faulkner, Duncan Faure, Alan Longmuir, Derek Longmuir, Leslie McKeown, and Stuart Wood were members of the 1970s rock band the Bay City Rollers (Rollers). Worldwide record sales have been estimated at between $70 million and $100 million. Despite having various contractual agreements to receive royalties from their record label, Arista Records LLC, the Rollers filed suit seeking, among other things, the imposition of a constructive trust for their failure to receive royalties for over 25 years. Arista did not deny its failure to pay, but defended, among other assertions, that the statute of limitations barred breach of contract claims and that no constructive trust could exist because no fiduciary relationship existed. Can a fiduciary relationship sufficient to impose a constructive trust exist between two for-profit entities? Can one party to a contract, who has failed to take action under the contract within the time prescribed by the statute of limitations, seek the equitable remedy of a constructive trust?

Question 12

What are two ways in which the duties of an administrator differ from those of an executor?

Question 13

What characteristics distinguish a will from other legal instruments?

Question 14

Must the grantor, trustee, and beneficiary of a trust all be different people

Question 15

A vacant and neglected building sat on Beardstown Street, and the City sought to impose fines on its owner to encourage him to clean up his property. The last filed deed in the recorder's office showed Mitchell to be the owner. After being served with a citation, Mitchell claimed he had already conveyed the property to Swan by quitclaim deed. The City noted that the deed to Swan purported to convey property on Beardstown Road instead of Beardstown Street , the recited $500 consideration had not been paid by Swan, and the notary public's acknowledgment was dated one day prior to the signature dates. Was the deed effective to convey the property?

Question 16

What formalities must be followed to create a testamentary trust?

Question 17

Jack and his parents purchased a piece of land, with Jack tendering the down payment, and his parents taking out a mortgage for the remaining purchase price. The deed showed only Jack's parents' names, but Jack testified that they verbally agreed to split the property in half. In fact, Jack built a house, resided on, and maintained "his" half of the land for over forty years. An issue arose after first Jack's father, then mother, died. The mother left a will devising the property to Jack's brother, Charles. Charles's wife then asked Jack to sign a lease in order to remain on the property. Jack sued, alleging a constructive trust had been established at the time of the purchase. Had it?

Question 18

What is the difference between ademption and abatement?

Question 19

Prior to their marriage, Robert and Eve Schneberger executed a prenuptial agreement granting Eve a life estate in Robert's home should he predecease her. Eve could occupy the home but not rent it out. Robert died still married to Eve. Subsequently, the home was damaged by a hurricane, and a dispute arose over responsibility to pay for the damages between Eve and her stepson, who was both the remainder beneficiary and trustee of Robert's trust. Eve argued that she did not have a true life estate because she could not deal with the property as her own by, for instance, renting it for income to pay the costs, and thus she should not have the obligations of a normal life tenant. Who was responsible for the hurricane damage? [Schneberger v. Schneberger, 979 So.2d 981 (Fla.Dist. Ct. App.)]

Question 20

John and his wife, Christine, had four biological children, and then decided to adopt "Emily" from China. John made provisions for his children in his will, which included any children who had been legally adopted by the date of his death. Emily's adoption was finalized and a fifth biological child was born to John and Christine after the date of John's last will. One year later, John died from cancer. Emily was found to have special medical and educational needs, and after several years, Christine asked her attorneys about finding someone to "re-adopt" Emily. Fortunately for Emily, new adoptive parents were found. Some years later, Emily's second adoptive parents discovered that John's estate was worth in excess of $250,000,000. Was Emily entitled to a share of her first adoptive father's estate?

Question 21

What is probate?

Question 22

Perrin Blank purchased a dental practice, including a lease of professional office space, equipment, and patient records. At the expiration of the lease term, Blank entered into his own five-year lease with the landlord. The lease was renewed three times. The offices were then sold to a new landlord, who notified the tenants that he planned to demolish the building. Blank found another property and sued the landlord for damages for
"lost profits; injury to business; loss of good will; lost earnings; lost earning capacity; lost lease value; relocation costs and expenses (including new office plan, design and build-out; cost of non-movable equipment and fixtures; moving expenses of movable equipment and computers; new cabinetry; new telephone and speaker systems; new advertising/promotion/signage/stationary; rent differentials); water, electric and other utility expenses; higher premiums for new insurance; borrowing/financing costs and expenses; tax liabilities; consultant and broker fees; and attorneys' fees."
State law allowed a wrongfully evicted tenant to recover the difference between the value of the leasehold and the rent payable, lost profits that could be reasonably determined, and damages "for losses that are the natural, direct and necessary consequences of the breach... such as should reasonably have been contemplated by the parties." Did the new landlord owe Blank anything? If so, was he responsible for all the different types of damages Blank claimed? [WSG Palm Beach Development, LLC v. Blank, 990 So.2d 708 (Fla.Dist. Ct. App.)]

Question 23

Louisiana law required that a will be signed on each page as well as at the end of the will. Arthur Simonson signed each page except page 6. Simonson's will followed all other formalities and there was no evidence of fraud. When the two beneficiaries filed the will for probate, the district court found the will invalid since it was not signed on page 6. Should the entire will be invalid? Should page 6 be left out, but the rest of the will be probated?

Question 24

William Melton executed a formal will consisting of two forms which Melton and three witnesses signed. Some years later, he handwrote a letter to a close friend, which read:
" I am on the way home from Mom's funeral. Mom died from an auto accident so I thought I had better leave something in writing so that you Alberta Kelleher will receive my entire estate. I do not want my brother Larry J. Melton or Vicki Palm or any of my other relatives to have one penny of my estate." [his italics]
The letter was dated and signed by Melton, but Kelleher predeceased Melton. Assume the jurisdiction recognized holographic wills. Is this letter a valid will, or codicil? What would you argue on behalf of William's only child, Vicki Palm?

Question 25

Having learned that real property is conveyed by deed and that property that is owned by two people as joint tenants with right of survivorship passes automatically to the survivor at the death of one owner, consider the following scenario:
After her husband dies, Rose Markovitz lives with her daughter, Sandy Olsen, and her family in Markovitz's house, and Olsen pays the real estate taxes for Markovitz. In order to permit Olsen to deduct the real estate taxes on her income tax return, Markovitz executes a quitclaim deed to the house to herself and Olsen as joint tenants with right of survivorship. Markovitz tells her five other children that she is quitclaiming the house to Olsen as joint tenant only to enable Olsen to deduct the taxes that she pays for Markovitz. After Markovitz dies, Olsen claims that the house belongs to her alone by right of survivorship. Discuss the ethical considerations involved in this situation.

Question 26

What if no beneficiary survives to inherit an estate?