Class Today

1. Class Today • Contracts relating to wills • Are promises to provide a bequest enforceable? Are promises not to revoke a testamentary bequest enforceable? • The law of wills and trusts looks to the law of contracts for answers • Construction of wills • How do we construe mistaken or ambiguous language?

2. Problems, p. 326 • Sidney has no contract claim—the terms of the “contract” are too ambiguous to be enforced. Sidney’s only remedy lies in quantum meruit, but he probably has already been paid for his services. • The breach of the contract did not revoke the will, so A takes under the will. T could have revoked the will, and A would have been out of luck. But T didn’t. (Had T revoked the will, A would have been entitled to quantum meruit for the services he did perform.)

3. Problems, pp. 326-327 • We don’t have a valid will (one signature), but we have a valid contract to make a will. B was entitled to specific performance of the contract. • The result in Borelli is unfair. W really did give consideration.

4. UPC §2-514: Contracts Concerning Succession A contract to make a will or devise, or not to revoke a will or devise, or to die intestate . . . may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

5. Indiana on contracts not to revoke a will • In order to create a contract not to revoke a will, no single verbal formula is necessary. • “It is generally accepted that a strong indicia of such a contract is a joint will that treats the testators' property as a single unit,” leaving property to the survivor and then to “a logical beneficiary of both the testators.” • Kitchen v. Blue, 498 N.E.2d 41 (1986) • "The burden of proving that mutual and reciprocal wills were made pursuant to a valid and enforceable contract is on those who assert such to be true,” and extrinsic evidence may be considered • Cramer v. Echelbarger, 234 N.E.2d 864 (1968)

6. Avoiding a finding of a contract not to revoke a will • Wills not Contractual. Although my Husband/Wife/Spouse and I are executing our Wills at or about the same time, they are not intended to be and shall not be construed to be contractual, even though certain provisions are reciprocal. Each Will shall be subject to revocation by its maker.

7. Via v. Putnam Can public policy override contracts not to revoke? Via v. Putnam, p. 329 CONTRACT Joann Putnam Edgar Putnam Rachel Putnam Pretermitted Spouse Share?? Florida decides that pretermitted spouse (and elective share) statutes trump the contract; majority of states come out the other way Children

8. Problem with enforcing promises not to revoke after remarriage • If the contract dictates that the estate goes to the children rather than a new spouse when the surviving spouse dies, to what extent can the surviving spouse use assets of the estate during the second marriage? • Can the two of them go an expensive cruise together? • Can the surviving spouse by an expensive anniversary gift? • As we’ll see more clearly when we discuss the trusts part of this course, you should use trusts rather than contractual wills to work out issues about the ultimate disposition of a couple’s estate. • Prenuptial agreements also are important for remarriages

9. Construction of wills • Mistaken or ambiguous language • Ordinarily, testators are bound by the words in their wills • But what if a mistake was made? • Traditionally, courts have not looked beyond the language of the will except to resolve obvious ambiguities • More and more states are allowing more and more extrinsic evidence to carry out the testator’s intent

10. Fulfilling the decedent’s intent • “The controlling consideration in determining the meaning of a donative document is the donor’s intention. The donor’s intention is given effect to the maximum extent allowed by law.” • Restatement § 10.1 (page 335) • But traditional rules require adherence to the plain meaningof the will, with no reformation of the will. • Extrinsic evidence allowed to resolve some ambiguities in text but not to prove that the testator intended something other than what was written

11. For an illustration of the traditional view, we have Mahoney v. Grainger, p.336 • What were the facts? • Helen Sullivan instructed her attorney to divide the residue of her estate equally among her 25 or so first cousins • The lawyer wrote the will to divide her residue to her living “heirs at law,” in equal shares • It turned out that she had a maternal aunt, who was her sole living heir

12. Mahoney v. Grainger Mahoney v. Grainger,p.336 Aunts & Uncles Aunts & Uncles Mother Frances Greene Father ?? First Cousins First Cousins Helen ?? ??

13. Table of Consanguinity p. 93

14. Mahoney v. Grainger • Was there any ambiguity in the language of the will? • Not according to the court. It may not have reflected Ms. Sullivan’s intent, but its application was clear • What language might have been viewed as creating an ambiguity? • The part about dividing the residue “share and share alike” suggests she expected more than one person to take the residue • Why might she have used that language even though her aunt was her sole heir? • In case her aunt predeceased her

15. Exclusion of extrinsic evidence, note 2, p.338 • Did the court get it right (in terms of testator intent) by giving Smith’s bequest to the Nevada corporation? • On one hand, we may conclude that the testator cared more about the local nursing home than an out-of-state corporation • On the other hand, we may conclude that the testator cared more about the company that owned the home when she wrote the will than about the company that purchased the home after she wrote the will

16. Resolving ambiguities • Traditional courts do not allow extrinsic evidence to resolve patent ambiguities (those apparent from the text itself) • Sometimes, property passes through rules of intestacy, sometimes later provisions trump earlier provisions, sometimes specific provisions trump general provisions • Traditional courts allow extrinsic evidence to resolve latent ambiguities (which niece named Alicia?) • IN allows extrinsic evidence for both patent and latent ambiguities

17. The Causes andEffects of Will Defects Undue Influence, Duress (relief granted) Fraud (relief granted) Lack of Capacity, Insane Delusion (relief granted) Mistake (no relief) And courts fix mistaken revocation of wills under DRR or compensate for the testator’s failure to update a will after a divorce or the birth of a child

18. Arnheiter v. Arnheiter Arnheiter v. Arnheiter(p.343)and the trend in favor of reformation of wills Reformation – NOT allowed: I direct my Executor to sell my undivided one-half interest of premises known as No. 304 Harrison Avenue . . . . No. 317 What happens to 317 Harrison? It falls into the residue. Falsa demonstratio non nocet (mere erroneous description does not vitiate) – allowed: I direct my Executor to sell my undivided one-half interest of premises known as No. 304 Harrison Avenue . . . .

19. Estate of Gibbs Estate of Gibbsp. 344 Reformation – NOT allowed: W. Robert J. Krause, now of 4708 North 46th Street, Milwaukee, Wisconsin… Ignoring certain details – allowed: Robert J. Krause, now of 4708 North 46th Street, Milwaukee, Wisconsin…

20. Erickson v. Erickson, p. 345 Open reformation of a will Erickson v. Erickson Sept. 1, 1988 Dorothy and Ronald marry. Feb. 22, 1996 Sept. 3, 1988 Ronald and Dorothy execute mutual wills, naming each other as executor and beneficiary, with their children, collectively, as contingent beneficiaries. Ronald dies. Ronald Dorothy Revoked by marriage?? Laura Ellen Alicia Thomas Chris Maureen Kathleen

21. Erickson v. Erickson • Note that both the trial court and the supreme court wanted to probate the will, but for different reasons • According to the trial court, it was clear from the will itself that Ronald intended it to survive the wedding (he left his estate to his fiancée, he named her his executrix and guardian of his daughters upon his death) • According to the supreme court, the language of the will itself did not provide for the contingency of a subsequent marriage. Nevertheless, extrinsic evidence could be admitted to establish the testator’s intent

22. Erickson v. Erickson • Why admit extrinsic evidence to correct a lawyer’s error? • There is no meaningful difference between admitting evidence of a mistake and admitting evidence of fraud, duress or undue influence • While the signing of the will creates a presumption that it accurately reflects the testator’s intent, the presumption should be rebuttable • A clear and convincing evidence standard for overcoming the presumption will ensure that the exception for admitting extrinsic evidence is a narrow one

23. Correcting Mistakes in Wills Arnheiter v. Arnheiter; Estate of Gibbs Erickson v. Erickson; UPC §2-805 Mahoney v. Grainger No extrinsic evidence; No reformation. The court “has no power to reform” but court reforms anyway. Open reformation; extrinsic evidence permitted.

24. UPC §2-805 (2008), p. 351:Reformation to Correct Mistakes “The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence that the transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.”

25. Substantial Compliance and Harmless Error Harmless Error Rule (UPC §2-503) Substantial Compliance The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served. The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will.

26. UPC §2-503: Harmless Error Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

27. UPC §2-502(b)-(c).pp. 227, 279 (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting. (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.