Wills, Trusts, & Estates CASES

VALIDITY OF WILLS:
Kirkeby v. Covenant House (Oregon 1998) p. 417
Must the witnesses sign in the presence of the testator?
Facts: The wife (Margaret) had a few wills. When she makes the final change to the will, she asks Lyman to type
up her will. Lyman does so and then Margaret signs the will. Then she calls a notary and tells him that Lyman is
bringing the will over and the notary notarizes it. Then Margaret called 2 neighbors and asked them to sign her
will and that Lyman would be bringing it over.
Analysis: The court had the biggest problem with the fact that the witnesses did not have the will with them when
Margaret called the neighbors and that she called and then later, Lyman brought the will to them.
In Re Estate of Peters (New Jersey 1987) p. 421
Facts: Witnesses saw the testator sign the will in the hospital, as did a notary. But the notary neglected to have the
witnesses sign. 15 months later, the testator died.
Timing issue:
o Must sign within a reasonable time after seeing the testator sign
o What is a reasonable time? Who fucking knows
Contemporaneously or in close succession
*In Georgia, the statute doesnt include reasonable time, because the statute says explicitly attested and
subscribed in the presence very strict requirement.
In Re Estate of Edward Frank Muder (Arizona 1988) p. 431
HOLOGRAPHIC WILLS
Okay if the signature and the material provisions of the will are in the testators handwriting
The proponent of the will argued that the material provisions are the property and who the testator wants the
property to go to
o The opponent wants the fact that I do declare this is my last will and testament was material
NOW: Material Portions
In Re Estate of Charles Kuralt (Montana 1999) p. 437
Timeline:
o Wife probates his estate in NEW YORK
o Shannon files petition for ANCILLARY PROBATE in Montana
o 1989: HOLOGRAPHIC WILL: MONT land to Shannon
o 1994: FORMAL WILL: all real property
o 1997: Letter to Shannon: Ill have the lawyer visit the hospital to be sure you inherit C
The court seemed to be persuaded by the fact that he had already engaged in a sham sale where he already sold
her part of the land in a sham sale
Because of the procedural posture, the lower court granted a motion for summary judgment, so this court sent it
back saying there was a genuine issue of material fact and on remand, the lower court found that this was a valid
codicil
In Re Snide (New York 1981) p. 447
Facts: The wills got switched. (They were mutual wills though they gave everything to each other)
o The only reason this is in court is because the minors Guardian ad litem was objecting to it.
Held: Because it was clear what they both wanted, formalism should be over-run in this case
o Substantial Compliance Doctrine: A court considered the level of compliance with statutory formalities
GA has started to be okay with this
Dissent: Very angry. Formalism is the foundation of wills and estates planning.
Harmless Error Doctrine:
In re Estate of Wiltfong (Colorado 2006) p. 452
Facts: Letter given to ling-time life partner that was typed (not holographic)
Whose burden? The proponent (burden of proof = Clear & Convincing evidence)

Wills, Trusts, & Estates CASES

The Court sent it back to the trial court they did not say that it was or was not a will.

Planning for Incapacity:

In re Ferrara (NY 2006) - p. 668
WILL: All to the Salvation Army
Statutory Short-Form Power of Attorney
o Gifts to spouses, children, etc. NOT TO EXCEED $10,000
o Addendum: Gifts Without Limitation In Amount to agents
Dominick = AGENT $820,000 to self in three weeks
o How does Dominick justify his actions? he says it was what the principal wanted to give all of his
money to him
How does the court limit his actions?
o NY Statute Gifts allowed but only if In the best interest of the principal
In re Franzen (Colorado 1998) - p. 679 [Not discussed in class]
Settlor gave power to WIFE to:
o Terminate trust
o Remove the trustee
In what capacity was Wifes brother OBrien acting?

Chapter 11: Will Contests

Breeden v. Stone (Colorado 2000) p. 585
Cunningham Test: Mental capacity to make a will requires that: (General testamentary capacity test)
o 1. The testator understands the nature of her act
o 2. She knows the extent of her property
o 3. She understands the proposed testamentary disposition
o 4. She knows the natural objects of her bounty, and
o 5. The will represents her wishes.
The Insane Delusion Test: A person who is suffering from an insane delusion at the time he executed the will
may lack testamentary capacity.
o An insane delusion = a persistent belief in that which has no existence in fact, and which is adhered to
against all evidence.
o Theres a causal relationship necessary between an individuals insane delusion & capacity to contract.
Burden of Proof:
o Propounder makes a prima facie case of proper execution burden shifts to the contestant
o GA: Propounder must make a prima facie case of everything (very light burden)
Then it goes to the caveator to show evidence of the element they are basing their challenge on.
Case Study 1: Burchard v. Corrington, 287 Ga. 786 (2010)
*Capacity & Undue influence are different things!
Who wants the will admitted? Henry
o Hes the one that would be taking under this will
o He was also her guardian/conservator in order to have a guardian appointed, the court had to have
found that she couldnt make decisions regarding her legal rights or health
o Having her make a will and having a guardian seem to be inconsistent, but because the guardianship
statute doesnt take away testamentary capacity, it doesnt nullify the will automatically
Clearly has early signs of dementia
o Didnt recognize family so she doesnt recognize the objects of her natural bounty (so if the client
doesnt remember her family coming to visit her, it should be scrutinized)
o In her late 8-s so dementia is common
o Potential witnesses = Guardian ad litem, doctor (as an expert witness)

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Case Study #2: Pope v. Fields, 273 Ga. 6 (2000)
Witnesses said she seemed competent same with notary
Other witness statements
Video statement
Royce Pope is the one caveating the will.
Problem: when he moved in with her and began handling her affairs, he hired an attorney and put everything into
the trust that is what is going to be fought over
o And it's a higher level of capacity to enter into a trust than to enter into a will
Case Study #3: Brumbelow v. Hopkins, 197 Ga. 247 (1944)
Monomania:
o Selling land and his kids trying to stop him
o Women he hated women but was very devoted to religion and his late wife
2 juries found he lacked testamentary capacity, but the GA supreme court said that the evidence presented was not
enough to negate capacity
o Whenever there is a question about capacity, it goes to a jury
O.C.G.A. 53-4-11(c): an insane individual can make a will when they are monomaniacs (fixated on one specific
thing) as long as the will is not affected by the will.
o Monomania exists whenever a person conceives something to exist which has no existence
whatever and is incapable of being permanently reasoned out of that conception, and monomania is not
mere dislike of certain person, or unreasonable conduct of a sane person.
Anything the court would consider for undue influence?
o Bud moved in with the father around the time of the execution of the will
o The father was rather isolated from the other children, but Bud did not necessarily do that
Confidential Relationship? No, Not really
Bud was a natural object of his fathers bounty
The testator went to the lawyer alone
Holdings:
o Court says that the will is void if it displays the intent of the influencer over the intent of the testator
o May be proved my circumstantial evidence.
o Honest persuasion or intercession to procure will in legatees favor undue influence
o The mere opportunity to exercise undue influence is insufficient to show that the will was a result thereof.
Things the court considered:
o Testators feelings and associations with the beneficiary of his bounty
o Testators habits, motives, feelings,
o Strengths or weaknesses of character
o Reasonableness or unreasonableness of the will
o Testators mental and physical condition when the will was made
o And generally every fact that will throw any light on such issue.
Case Study #4: Parker v. Melican, 286 Ga. 185 (2009)
Capacity is difficult when he was drunk all the time
He may be more functional after his daily box of wine.
Evidence of undue influence:
o Completely dependent on Ms. Melican In a confidential relationship with her
o And was present during the signing of the will sitting on each side of his wheelchair
She isnt the natural bounty for intestacy purposes.
Simmons v. Harms (Georgia 2010) p. 591
Facts: Named her son as the executor of the estate and 2 of her 4 daughters would get the homestead the
second will made the son the major one to inherit. (This change should have been something the lawyer recorded
in the file)

Wills, Trusts, & Estates CASES

Rule: What the law regards as undue when it gives dominion over the will to the extent that the testators free
agency is destroyed or the testator is constrained to do against his will what he is unable to refuse.
o Test: what will raise a rebuttable presumption of undue influence:
The presence of a confidential relationship
The individual is not a natural object of the testators bounty; and
He takes an active part in the planning, preparation, and execution of the will.
*As the lawyer, you need to talk to the testator alone.
Burden of proof:
o **Whoever has it is very important because the problems kind of shift away from that person.
Case Study #5: Sullivan v. Sullivan, 237 Ga. 130 (2000)
Testamentary Capacity:
o Must be present at the time the will is signed
o Attorney hears things that should make her doubt his capacity
Cant identify beneficiaries
Cant identify who his current wife is
Cant identify property
o Its now or never
The memo to file in anticipation of litigation she knew that it was going to be contested.
o But it was not privileged anymore because Sarah was in the room

Chapter 5: Trusts
Palozie v. Palozie (Connecticut 2007) p. 209
Trust not created because the did not prove that the mother intended to create a trust and name herself as the
trustee.
If you want to transfer real property to yourself as the trustee, it must be additionally recorded in real property
records down at the courthouse
Side note: trusts dont require witnesses [O.C.G.A. 53-12-25]
Matter of Estate of Bollinger (Montana 1997) p. 214
I feel confident my father/stepmother will use this money for the best interests of my children
Does this create a trust?
NO RADFORD: Dont play around with the words. Say what you want.
Clark v. Campbell (New Hampshire 1926) p. 225
to make disposal by way of memento to such of my friends as they, the trustees, shall select
Friends is not considered an ascertainable beneficiary class
Gregory v. Bowlsby (Iowa 1902) p. 234
Did the father owe a fiduciary duty to his children from his first marriage?
o Dad made promise that he didnt keep
Promise about real property is unenforceable if not in writing
o His intention was fraud
The court imposed a constructive trust in order to prevent an unfair result.
Rowe v. Rowe (Oregon 1959) p. 308
Facts: Testamentary Trust; Trustee = Wilbur Rowe (); Life beneficiaries = parents of wife; Remainder
Beneficiaries = beneficiaries under the will.
o Plaintiff = Grandfather (the life beneficiaries)
o Defendant = Trustee & Remainder Beneficiaries
o Type of Action = Declaratory decree
o Trust gives discretion to the trustee

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Argues: Just wants to be paid the income on the trust
Standard: Leave the distribution to the trustee when its discretionary as long as the trustee acts within the
bounds of reasonable judgment. Bound by a fiduciary duty
o The court will not interfere is the trustee acts within the bounds of reasonable judgment Citing Scott
on Trusts.
UTC 814(a): In good faith
O.C.G.A. 53-12-260:
o These are raising the bar a bit over the reasonableness standard
Masler v. Holly (Florida 1975) p. 312
Involved People:
o Settlor = Elaine Holly
o Co-Trustee = Holly (Also a beneficiary)
o Life beneficiaries = {The settlors great-grandchildren?}
o Remainder = {Massachusetts trust?}
The co-trustees may in their absolute discretion distribute so much of the principal of the trust
Do the co-trustees have absolute discretion?
o Necessary may raise to the level
What raises an inference of abuse of discretion?
o She wasnt reporting to the remaindermen. And they have a CoA, so she would have to be giving those
reports so that the remaindermen could timely file a claim if they needed to
o Also because shes the beneficiary implying that there is a higher standard when you are the trustee and
the beneficiary.
o Shes not being completely reasonable in her actions.
o From slide 22:
1. Trustee is the sole lifetime beneficiary
2. She has not furnished accountings or reports to the remainder beneficiaries
She is not limiting her invasions of principal to reasonable limits.
Combs v. Careys Trustee (Kentucky 1956) p. 319
How did the court define the trustees discretion?
o Discretion: Invasion of corpus for comfort, welfare, and happiness broad grant of discretion.
o The beneficiary Mrs. Walsh
o The trustee = Security Trust Company
The fact that theres a 3rd party professional trust company there is more of a presumption that the distribution of
the trust is a little more reasonable
This was an inter vivos trust made during the settlors life and it was made by a mom to a daughter so the mom
knew of the daughters lavish lifestyle.
Shelley v. Shelley (Oregon 1960) p. 331
Facts:
o Beneficiary: Grant Shelley (son of Settlor)
o Wife #1: Patricia, 2 children (divorce decree)
o Wife #2: Betty (plaintiff), 2 children (divorce decree)
*This is a case of judicial legislation the court is acting on the authority of public policy & equity.
o The court is overriding the legislature and the language of the trust
o The public policy concern for the court is that if the debtor isnt paying, then the state will end up paying
for the children and the ex-spouses.
Analysis:
o Income Mandatory or discretionary?
Patricia is seeking support
Betty is seeking alimony and support.

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Duvall v. McGee (Maryland 2003) p. 335
Facts: Wrongful death claim. Settled with payments from trust.
Dissent says its against public policy to not allow victims of a crime to enter the province of the trust.

Speed v. Speed (Georgia 1993) The invalidity of self-settled spendthrift trusts stems from the idea that no settlor,
disabled or otherwise, should be permitted to put his own assets in a trust, of which he is the sole beneficiary, and shield
those assets with a spendthrift clause, because to do so is merely shift[ing] the settlor's assets from one pocket to another,
[in an attempt to avoid creditors]