PROPERTY D SLIDES

1. PROPERTY D SLIDES 2-20-14

2. Thursday Feb 20 Music: Jim Croce, Photographs & Memories (1972-73) Lunch Today: Meet on Brix @ 12:25 Cespedes, Falk, McKenzie, Menendez, Raijman, Shawn, Venkatesh Shenandoah Reminder: Critique of Rev. Prob. 2G Due Today @ 10am

3. DQ3.04: D had 3 children, Albert,Beatrice, Claudine. At time of D’s deathA dead, survived by one child, ErnestB dead, survived by 2 children, Frank & GraceC alive with living child Hannah FL & VT Both Go by Branch C = 1/3 E = 1/3 F = G = 1/6 D A C B E H F G

4. DQ3.04: D had 3 children (A, B, C). At time of D’s death: A dead, survived by one child, E; B dead, survived by 2 children, F & G; C alive with living child H Hawaii: 2-103(1): Estate goes to descendants “by representation.” 2-106(b) explains representation re descendants. Break up complex statute into pieces (Use word processing!!)

5. DQ3.04: D had 3 children (A, B, C). At time of D’s death: A dead, survived by one child, E; B dead, survived by 2 children, F & G; C alive with living child H Hawaii 2-106(b): Decedent's descendants.  If … a decedent's intestate estate … passes "by representation" to the decedent's descendants, the estate … is divided into as many equal shares as there are: (1)  Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (2)  Deceased descendants in the same generation who left surviving descendants, if any. … • Nearest Generation w Survivors = D’s Children • In that generation, ONE “surviving descendant” (C) • In that generation, TWO “deceased descendants … who left surviving descendants” (A+B) • Means divide into THREE equal shares

6. DQ3.04: D had 3 children (A, B, C). At time of D’s death: A dead, survived by one child, E; B dead, survived by 2 children, F & G; C alive with living child H We now have THREE equal shares Hawaii 2-106(b): … Each surviving descendant in the nearest generation is allocated one share. … Nearest Generation w Survivors = D’s Children; • In that generation, ONE “surviving descendant” (C) • C gets ONE share = 1/3 of estate • TWO Shares remain (2/3 of estate)

7. DQ3.04: D had 3 children (A, B, C). At time of D’s death: A dead, survived by one child, E; B dead, survived by 2 children, F & G; C alive with living child H TWO Shares Remain (2/3 of Estate) Hawaii 2-106(b): … The remaining shares … are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. … In other words, allocate the remaining estate to surviving descendants of A + B as though C + H already dead.

8. DQ3.04: D had 3 children (A, B, C). At time of D’s death: A dead, survived by one child, E; B dead, survived by 2 children, F & G; C alive with living child H Remaining 2/3 of Estate: Allocate to surviving descendants of A + B “in the same manner” as though C + H already dead. (Back to the top) Hawaii 2-106(b): … the estate … is divided into as many equal shares as there are: (1)  Surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and (2)  Deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. Nearest Generation w Survivors = D’s Grandchildren (Treat C as Dead) • In that generation, THREE “surviving descendants” (E, F, G) (Treat H as Dead) • In that generation, ZERO “deceased descendants … who left surviving descendants” • So divide into THREE equal shares (2/9 of Estate each); E, F, G each get ONE share

9. DQ3.04: D had 3 children, Albert,Beatrice, Claudine. At time of D’s deathA dead, survived by one child, ErnestB dead, survived by 2 children, Frank & GraceC alive with living child Hannah Hawaii: C =1/3 E = F = G = 2/9 (1/3 x 2/3) H = 0 (C Still Alive) D A C B E H F G

10. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ?

11. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ? Florida? (A-Ho)

12. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ? Florida: Descendants of Grandparents • §732.103 (4) (b) stops there. • §732.103 (5) adds kin of “last deceased spouse”, although technically not D’s relatives, so not really responsive to Q Hawaii (Hu-N)?

13. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ? Florida: Descendants of Grandparents Hawaii: Descendants of Grandparents • §2-103(4) stops there Vermont (O-Z): Relevant Provision/Language?

14. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ? Florida & Hawaii: Descendants of Grandparents Vermont: § 314(b)(4) “in equal shares to the next of kin in equal degree.” “Next of Kin” Means? “In Equal Degree” Means? So Most Remote Relative is …?

15. DQ3.05: Who is the most remote relative who can receive the Intestate Estate ? Florida & Hawaii: Descendants of Grandparents Vermont: § 314(b)(4) “in equal shares to the next of kin in equal degree.” No Limit at All!!

16. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born

17. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Florida (A-HO): Relevant Statutory Provision?

18. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Florida §732.106.  Afterborn heirs. Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime. Resulting Disposition?

19. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Florida §732.106.  Afterborn heirs. Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime. Disposition: D’s Posthumous Nephew Takes a Share

20. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Vermont (O-Z): Relevant Statutory Provision?

21. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Vermont: § 303. Afterborn heirs. For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. Resulting Disposition?

22. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Vermont: § 303. Afterborn heirs. For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. Disposition: Posthumous Nephew Takes if He Survives D by 120 Hours (5 days)

23. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Hawaii (HU-N): Relevant Statutory Provision?

24. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born Hawaii: 2-108  Afterborn heirs.  An individual in gestation at a particular time is treated as living at that time if the individual lives one hundred twenty hours or more after birth. Same Result as Vermont (essentially same language)

25. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born COMPARE TEXAS Texas Probate Code §41(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate. Resulting Disposition?

26. DQ3.06: D’s Brother Dies Leaving Pregnant WifeD Subsequently Dies 10 Days Later Brother’s Posthumous Son Born COMPARE TEXAS Texas Probate Code §41(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate. Disposition: D’s Posthumous Nephew Gets Nothing b/c Not D’s Lineal Descendant

27. Intestacy: What I Expect • General Understanding of Operation • Recognition of Issues Where States Can Differ • Meaning of Statutory Language from the Three States We’ve Looked At. QUESTIONS?

28. LOGISTICS • Please Don’t Use PDFs for Written Submissions • For Review Problem 3B Monday, Use Test in DQ3.10 for “Substantial Compliance” Issue

29. LOGISTICS Later Today: On Course Page re Exams • Samples of Exam Qs 1, 3, 4 • Comments/Best Answers to Follow • Instructions for Submitting Sample Exam Answers for My Comments • Read Carefully & E-Mail Me if Qs • Slides from My Exam Tips Workshop

30. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death • General Introduction • Intestate Succession • Generally • Working with Specific State Statutes • Wills • Generally • Will Formalities • Substantial Compliance • State of Mind Requirements

31. Wills: Generally A. Mechanism for Transfer of Property at Death B. Competing Concerns • Follow Wishes of Deceased: Intent Crucial • Protect Family • Provide Sufficient Indication of Transfer to Gov’t • Requirement of “Testamentary Intent” • Usually Proved by Meeting Formalities & Other Surrounding Circumsdtances • Don’t Treat as a “Formality” • Address in Conjunction with State of Mind

32. Wills: Generally D. Limits on Following Testator’s Intent • Some Substantive Limits (Next Two Slides) • Must Meet Formalities (Today & Monday) • State of Mind Requirements (Next Week) • Need Sound Mind/Capacity • No Fraud, Duress, Undue Influence • Testamentary Intent (if at Issue)

33. Wills: Substantive Limits(Even if Will is Constructed Perfectly) A. Homestead & Related Rules: • Home & household stuff to spouse/minor children • Examples in FL Constitution & Statutes B. Spousal Elective Share (as described in outline) C. Post-Will Marriage/Divorce • FL: new spouse: spousal share unless • intent expressed in will OR • prenuptial agreement • FL & other states: divorce revokes will as to ex

34. Wills: Substantive Limits(Even if Will is Constructed Perfectly) D. Pretermitted (UNMENTIONED) Children: • GET intestate share in some states • Usually limited to afterborn • General Points • These Rules Very Protective of Immediate Family • If typical married middle class person, probably no choice re much of estate, which goes to spouse/homestead • Substantive Limits Above • Spousal property issues noted with Intestacy

35. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death • General Introduction • Intestate Succession • Generally • Working with Specific State Statutes • Wills • Generally • Will Formalities • Substantial Compliance • State of Mind Requirements

36. BISCAYNE: DQs 3.07-3.08 SUNRISE AT ADAMS KEY

37. Will Formalities: Signature at “End”: RuleDQ3.07-3.08 (Biscayne) Many States Require T to Sign at “End” of Will • Seems like relatively bright line, but not always clear • Can use policy behind rule to resolve ambiguity or vagueness (even w statute) Why have such a rule? What legal test do PA courts use to interpret?

38. Will Formalities: Signature at “End”: CasesDQ3.07-3.08 (Biscayne) Stasis: • Why Signature Problematic? • Why Did Ct Allow? Swire (Discussed in Stasis @ S57-58) • Why Signature Problematic? • Why Did Ct Allow?

39. Will Formalities: Signature at “End”: CasesDQ3.07-3.08 (Biscayne) Weiss: • Why Signature Problematic? • Why Different from Other Two Cases? • Story That Makes Weiss More Like Stasis? • Matter Who Involved Parties Are? Does Policy Behind Rule Makes Sense of the Three Results?

40. BISCAYNE DQ3.08: Is signature at the “end” of the will if there’s a gap of 4-5 inches between the end of the text and the signature line? I, Will Sandtrusts, being of sound mind and body, leave my property as follows: To my son Jeremy, I leave my collections of Victorian Erotic Art and of Ancient Coins, all of the furnishings of the game room at the Rhode Island Mansion, and a one-half interest in my yacht, Salt Codicil. To my son Kevin, I leave all of my CDs and DVDs, and a one-half interest in my yacht, Salt Codicil. To my most beloved daughter Louise, I leave all of the furnishings from the rooms of my late wife in both the Rhode Island Mansion and the Manhattan apartment and all of the boats I own except for Salt Codicil. To the Society for the Preservation of Ancient Property Rules, I leave the sum of $45,000. To Jack Jackson, the manager of the Vanderbilt Yacht Club, I leave the sum of $25,000 for years of helpful service. To the longtime servants at the Rhode Island Mansion, Ella, Max, Genevieve, Aloysius, and Ferdinand, I leave $12,000 each, as well as $2,000 to young Ethan, who has been very helpful in his short stay. To Natasha Fatale, who has made my last years bearable, I leave the Manhattan apartment and all its furnishings except those listed above for Louise. The Rhode Island Mansion, after the above gifts have been bestowed, is to go in equal parts to Jeremy, Kevin, and Louise, except that if either Kevin or Jeremy sell or give away their hslf of the yacht Salt Codicil during their lifetimes, their share of the mansion will then go to Louise. The rest, remainder, and residue of my estate is to be divided equally among my grandchildren living at the time of my death. Will Sandtrust___ Xmas Day 2012

41. Will Formalities: Review Problem 3A • Part of a Larger Issue-Spotter • No specific jurisdiction or statute listed, so: • Identify Areas Where There Might Be Serious Qs • Serious = Likely to be Strongly Contested • Means if No Serious Q, Can Skip or Do Very Quickly • Qs Here That Are Not “Serious” • Did IV sign at end? • Are witnesses old enough?

42. Will Formalities: Review Problem 3A • Part of a Larger Issue-Spotter • No specific jurisdiction or statute listed, so: • Identify Areas Where There Might Be Serious Qs • For Each Area Identified: • Discuss Possible Rules & Outcome Under Each • If I want you to use specific state or statute, I’ll give you statutory language • Otherwise can use Fland other specific authorities provided as examples

43. BISCAYNE: Rev. Prob. 3A SUNRISE AT ADAMS KEY

44. Review Problem 3A (Biscayne) Issues for Discussion Here • State of Mind Issues (For You After We Cover) • Capacity • Undue Influence • Pretermitted Child/Homestead Qs: (For You; see S49-50) Serious Qs Here re Formalities?

45. Review Problem 3A (Biscayne) Serious Qs Here re Formalities • InterestedWitnesses  (Number) • Presence Reqmts: • Did Ws Sign in Presence of T • Note: No issues raised re T signing in W’s presence • Note: Acknowledgement reqmts are replacements for Ws watching T sign; generally not separate reqmt

46. Review Problem 3A: Will Formalities IssuesViewed as Sample of Construction of Exam Q For Both Serious Issues: • Rules Vary from State to State: • Need to know that rules vary • Need to know at least some of the possible rules • No Clear Answer Under Some or All Applicable Rules • Key Qs Here: • Employee or Manager of Beneficiary as Interested W? • Presence Reqmt Met if T Asleep? • Need to Recognize Uncertainty and Make Arguments to Resolve It • Can do literal arguments • Can do purpose arguments