Trusts & Estates Essentials: Chapter 1 & 2 Review and Logistics

1. Trusts & Estates EssentialsPower Point Slides Class #4: Monday 8/26 National Cherry Popsicle Day & National Dog Day

2. Music to Accompany Thiemann:Back Street Boys, Millenium

3. UNIT ONE: BASELINES Closing Up CHAPTER 1: OVERVIEW Problem 1:4 & Logistics

4. Problem 1:4

5. 1.4.5 The Slayer RuleLast Names C-L: Problem 1:4 Uncertainties in Application of Slayer Rule • Two reasons John might not be a slayer despite causing Kerry’s Death • Mental Incompetence (States Split) • Assuming incompetence does not defeat application of rule, does J’s behavior meet standard for intentional killing? Many states distinguish between “reckless” and “negligent” behavior for this purpose. On which side of this line would you put letting go of the steering wheel? • If J is barred from inheriting by the slayer rule, should his daughter be able to take?

6. 1.4.5 The Slayer RuleLast Names C-L: Problem 1:4 Uncertainties in Application of Slayer Rule • If J is barred from inheriting by the slayer rule, should his daughter be able to take? • Again, states split. • Should keep track of splits because I’ll have questions asking which rules are true in all American jurisdictions.

7. Trusts & Estates Essentials: Logistics NOW ON COURSE PAGE • Syllabus-to-Date (Use for specific assignments for each section) • Wednesday’s Assignment • Updated Supplement • Descriptions of Power Point Contents

8. Trusts & Estates Essentials: Logistics NOW ON COURSE PAGE • Chapter One Review Materials • Weighted Syllabus • Sample Qs (Set #1) with Answers/Explanations

9. UNIT ONE: BASELINES CHAPTER 2: INTESTACY Assigned Problems 2:4 2:5 2:6 Sections 2.4 & 2.6

10. Intestacy: Modes of Distribution Assigned Problem 2:4 (All Three Methods) Last Names C-L

11. Problem 2:4: English/Florida Per Stirpes? “A” is the decedent.

12. Problem 2:4: Solution for English/FL Per Stirpes Below Modern Per Stirpes? “A” is the decedent.

13. Problem 2:4: Solution for Modern Per Stirpes Below Per Capita at Each Generation? “A” is the decedent.

14. Problem 2:4: Solution for Per Capita Each Generation “A” is the decedent.

15. Intestacy: Modes of Distribution Assigned Problem 2:5 (Florida (Pure Per Stirpes) & Per Capita Each Generation) Last Names A-B

16. Problem 2:5: Florida/English per Stirpes? Two Examples “A” is the decedent.

17. Problem 2:5: English FL Per Stirpes • First Example • D gets 1/2 • F gets 1/4 • G&H get 1/8 each • Second Example • D&E get 1/3 each • F & G get 1/6 each

18. Problem 2:5: Per Capita Each Generation? Per Capita at Each Generation (UPC 1990) Two Examples “A” is the decedent.

19. Problem 2:5: Solutions for Per Capita Each Generation BelowEnglish/FL Per Stirpes? Per Capita at Each Generation (UPC 1990) Two Examples “A” is the decedent.

20. Section 2.4: Half-Blood: Generally Primary Question: Should collateral heirs related to the intestate decedent by the half-blood receive the same intestate share as those related by the whole blood? • Difficult policy Q because huge variation in the way half-siblings are raised & interact. E.g., • Father’s 2d family started 20 years after -OR- • Half siblings close in age raised in same household)

21. Section 2.4: Half-Blood: Generally Primary Question: Should collateral heirs related to the intestate decedent by the half-blood receive the same intestate share as those related by the whole blood? • Important (avoid common student error): Half blood relatives must be collaterals; can’t be direct descendants or ancestors. If you have one child each with 2 diff partners, they are half siblings to each other but both are full children to you.

22. Half-Blood: Relationships

23. Section 2.4: Half-Blood: Two Rules UPC & MAJORITY OF STATES: NO DIFFERENCE • §2-107 Kindred of Half Blood. Relatives of the half blood inherit the same share they would inherit if they were of the whole blood. • Casebook authors: The UPC rule on half-bloods is, in some ways, consistent with the principle of “Equally near, equally dear,” which is the guiding tenet of the UPC’s system of representation, per capita at each generation.

24. Section 2.4: Half-Blood: 2 Rules FLORIDA & MINORITY OF STATES: HALF SHARES • 732.105. Half blood. When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts. • ME: Florida approach consistent with use of pure per stirpes for distribution.

25. In re Estate of Thiemann, 992 S.W.2d 255 (Mo. Ct. App. 1999)Myrna is Decedent

26. Section 2.4: Half-Blood: In re Thiemann • Will & Hyatt are half-sisters of Woodside. Woodside is a full-blood aunt of the decedent. Will & Hyatt’s dad was decedent’s grandfather, but their mother was not decedent’s grandmother. Thus, they are half-blood aunts of the decedent. • Lower court held that Will and Hyatt should get same share as Woodside for two reasons (both rejected by appellate court): (1) No such thing as half-aunts, only half siblings.Appellate court disagrees as a matter of logic, Has to be true because statute in Q refers to half blood relatives but does not cover siblings.

27. Section 2.4: Half-Blood: In re Thiemann • Lower court held that Will and Hyatt should get same share as Woodside for two reasons (both rejected by appellate court): (2) Statute in Q says to use half-blood rule when gift “directed to go to ascendants and collaterals” Since no ascendants here, not triggered. • Casebook authors suggest this was rejected as a matter of precedent and policy (seems sensible) • I think the court also makes a persuasive statutory interpretation point that “directs” here means what group of people the statute tells you to look at. Here, statute directs you to look at both ascendants and collaterals, but will award property to collaterals alone in absence of ascendants.

28. Section 2.4: Half-Blood: In re Thiemann: Additional Points • Florida reaches same result on these facts as Missouri. UPC divides property evenly between the aunts. • Helpful passage from Missouri treatise: “A convenient method of determining the share of collaterals of the half blood when no ascendants are involved is to double the number of collaterals of the whole blood and add the result to the number of collaterals of the half blood.” Thus one whole blood (x2) plus two half blood aunts yields 4 shares. Half-blood ants get a quarter each; whole blood aunt gets half. • I will not give you a problem involving both ascendants and half-blood relatives as takers.

29. Section 2.4: Half-Blood: Problem 2:6 Last Names A-B Refer to the facts in In re Estate of Thiemann and answer the following questions: • A. Suppose that after Myrna's death, Hyatt then died intestate. Who would receive what from Hyatt's estate under UPC? Under Florida?

30. HYATT is Decedent. UPC? Fla?

31. Section 2.4: Half-Blood: Problem 2:6 Last Names A-B Refer to the facts in In re Estate of Thiemann and answer the following questions: • A. Suppose that after Myrna's death, Hyatt then died intestate. Who would receive what from Hyatt's estate? • Will is full sibling; Woodside is half sibling. • In Missouri or Florida: Will gets 2/3 and Woodside gets 1/3. • Under UPC, equal split • B. Do you prefer the UPC’s rule or the Florida rule? Why?

32. Section 2.4: Half-Blood: Problem 2:6 • B. Do you prefer the UPC’s rule or the Florida rule? Why? • Class discussion re best default to address range of half-sibling experiences. Perhaps best points supporting Florida/Missouri position (half gets half): • Baker point that decedent half-siblings might have significant wealth from non-common parent’s family • Point from last year that surviving half-siblings have a separate source of support from the other side of their family.

33. Section 2.6: Advancements • An “advancement” refers to a gift from a living donor (inter vivos) to an intestate heir apparent if the donor intends the gift to constitute a part of the heir apparent’s intestate share. • If inter vivos gifts determined to be “advancements,” their value is deducted from intestate inheritance. Not deducted from share under will, because testator presumed to have taken gift into account.

34. Section 2.6: Advancements An “advancement” refers to a gift from a living donor to an intestate heir apparent if the donor intends the gift to constitute a part of the heir apparent’s intestate share. • Common law: Inter vivos gifts presumptively treated as advancements • UPC § 2-109 & Fl. Stat. § 733.806: Reverse the common law presumption under the belief that most inter vivos gifts not intended to be advancements

35. Section 2.6: Advancements • UPC §2-109 & Fl. Stat. §733.806: A gift is considered an advancement if • the decedent declared it so in a contemporaneous writing OR • the heir acknowledged in writing that it was. • UPC2-109(ii) adds the following way to show an advancement: “the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.” • I think this primarily makes clear that the word “advancement” doesn’t have to appear • Florida might well reach the same result under the language of 733.806

36. UNIT TWO: WILLS CHAPTER 3 WILLS: PROTECTING TESTAMENTARY INTENT Sections 3.1 & 3.2.1-3.2.2 Pretty Basic Stuff; Not Especially Helpful to Have Read in Advance

37. Chapter 3: Introduction Chapter Primarily Addresses Doctrines Designed to Protect Testamentary Intent • In Section 3.2: “Internal Factors” (Within Testator) • Testamentary Intent & Capacity • Must have at the moment the will is executed. • In Section 3.3: “External Factors” • Improper Pressure/Influence Exerted by Someone Else • Fraud, Duress, Undue Influence

38. Chapter 3: IntroductionOne significant idea to take from Section 3.1 Who has standing to contest a will? • Person needs concrete stake in outcome of litigation • Generally means person will receive more if the court invalidates all or part of will

39. Chapter 3.2.1: Testamentary Intent Animus Testandi: The requirement that a testator intend, at the time of execution, for the document signed as a will to be his or her will. • Rationale? Need to distinguish between preliminary documents (e.g., drafts, notes for a will) and the final testamentary instrument. Cf. joint party planning: early guest lists, menu, music selections. Three Dimensions (In text from Prof. Glover; helpful at a general level): • Donative testamentary intent (testator’s intent to make a gift at death) • Operative testamentary intent (testator’s intent for the purported will to make such gifts at death) • Substantive testamentary intent (the substantive meaning of the words of a will)

40. Estate of Hand73 N.E.3d 880 (Ohio Ct. App. 2016) [Dear Natalie, [I love you because . . . .] As my last will and testament, I appoint you the primary beneficiary of all I have and all I have worked for. With the complete trust that you will look after the children, my business interests and all the other things that I have put together over the years and not let anyone try to deprive you of those things. I love you eternally, ERIC ANTHONY HAND s/ Eric Anthony Hand

41. Chapter 3.2.1: Testamentary IntentEstate of Hand: General Points • Some states allow holographic/handwritten wills with fewer formalities than otherwise required • We’ll cover later • Ohio must allow these for case to make sense; • Authors suggest if same thing done w full formalities, likely diferent outcome b/c getting witnesses etc. would make testamentary intent much clearer

42. Chapter 3.2.1: Testamentary IntentEstate of Hand: General Points • Note: Standard of review is deferential: • Does credible competent evidence support lower ct decision? (Cf. football replay) • NOT de novo review (would = appellate court reads/interprets evidence itself to decide outcome).

43. Chapter 3.2.1: Estate of Hand: Evidence re Testamentary Intent • Style was like his other love letters BUT • only one with will language • only one w full signature • Natalie stores w other love letters b/c she viewed as love letter • N testified Eric said he would legally create will at later date • Strong suggestion he didn't consider it final • Court quotes earlier case: T needed to have intended document to be final “as it stood, without further act on his part to complete it.” • [NOTE: E is disinheriting his 4 kids, so court may be disinclined to support Natalie. Not evidence, but a story court may not like.]

44. Chapter 3.2.1: Problem 3:1 Maria Gonzalez lives in a state that enforces holographic wills. While on vacation, Maria Gonzalez handwrote the following letter to her daughter, Rosa: I’ve thought a lot about my estate on this trip. When I return home next month, I’ll see my lawyer and ask him to prepare a new will for me. Right now, under my current will, you get half of everything and your brother gets the other half. But I’ve changed my mind about that and want to write a new will. When I have a chance to formalize everything with my lawyer, I’ll make sure you get it all.

45. Chapter 3.2.1: Problem 3:1 • Mrs. Gonzalez died in a train wreck while returning from her vacation. • The letter was dated and signed by Mrs. Gonzalez, satisfying the formalities for a holographic will. • Her daughter offered the letter for probate as Mrs. Gonzalez’s will and claimed the entire estate for herself. • Rosa’s brother objects and claims that Mrs. Gonzalez called him shortly before her death to say that he would get at least half of her estate. • Looks like intent to formalize later as in Hand.

46. Chapter 3.2.1: Problem 3:1 • Casebook authors say might be treated as a will because court might see as intent to do final disposition of her estate. (Kuralt = Next Slide) • Problems: • Did she have any reason to anticipate death (cf. Kuralt)? • What if letter was attempt to get daughter to stop nagging?