PROPERTY A SLIDES

1. PROPERTY A SLIDES 2-7-17 National Fettucine Alfredo Day National Periodic Table Day

2. Trusts & Estates Essentials: Logistics Next Tuesday’s Assignment Posted on the Course Page

3. UNIT TWO: WILLS CHAPTER 3 WILLS: PROTECTING TESTAMENTARY INTENT Strittmater cont’d and Capacity Problems 3A(1) & 3(B)(1)

4. Chapter 3.2.4: Insane DelusionsStrittmater: Recap • Evidence Supporting “No Sound Mind” includes: • MD testimony: symptoms of split personality, paranoia • “Happy childhood,” then turning on parents • Great aversion to men • Ominous Incidents: smashing clock; killing kitten

5. Chapter 3.2.4: Insane DelusionsStrittmater: Recap • Evidence Supporting “Sound Mind” includes: • Behavior with lawyer & bank • Beneficiary was org. she belonged to/volunteered for (so logical to support in will) • Not close to nearest relative • MD who testified was GP (not psych expert)

6. Strittmater & Traditional Rule [T]he testator or donor must be capable of knowing and understanding in a general way [i] the nature and extent of his or her property, • what [s]he has [ii] the natural objects of his or her bounty, and • logical recipients given specifics of his/her life [iii] the disposition that he or she is making of that property, … • how the will distributes what [s]he has Any evidence test not met? • [Even if test met, “insane delusion” could still apply as in Zieliski]

7. Strittmater: Last Names M-Q Can you imagine a story (other than the one the court accepts) that might explain her behavior?

8. Review Problem 3A(1) (Last Names E, R-Z ) Victoria Zayres was a hemophiliac who contracted AIDS through blood transfusions. About a week before she died, VZ dictated her will to a lawyer [then signed it]. . What is a hemophiliac? What connects hemophiliacs with AIDS? Why did I name her Victoria Zayres/?

9. Review Problem 3A(1) (Last Names E, R-Z ) Queen Victoria’s Heirs & Hemophilia

10. Review Problem 3A(1) (Last Names E, R-Z ) Victoria Zayres was a hemophiliac who contracted AIDS through blood transfusions. About a week before she died, VZ dictated her will to a lawyer [then signed it]. ISSUES RAISED BY PROBLEM • Undue Influence by Dr. (For You & Multiple Choice Qs) • Fraud (Simple Point): If Can Prove Dr. Deliberately Mistranslated VZ’s Mumbles • Capacity (Now) • NOTE: “All Proper Formalities” Takes Formalities Issues Off Table, meaning she must have signed it before witnesses.

11. Review Problem 3A(1) (Last Names E, R-Z ) Victoria Zayres was a hemophiliac who contracted AIDS through blood transfusions. About a week before she died, VZ dictated her will to a lawyer [then signed it]. Her family later claimed that VZ lacked capacity at the time she signed it. Relevance of Facts/Unknown Additional Facts? • VZ had AIDS/died a week after signing. • VZ dictated her will. • VZ sometimes mumbled incoherently while dictating.

12. Review Problem 3A(1) (Last Names E, R-Z ) Victoria Zayres was a hemophiliac who contracted AIDS through blood transfusions. About a week before she died, VZ dictated her will to a lawyer [then signed it]. Her family later claimed that VZ lacked capacity at the time she signed it. Relevance of Facts/Unknown Additional Facts? • VZ left her brother John collection of Beatle’s tapes. • VZ left rest of her property to Dr. K.

13. Review Problem 3B(1) (Last Names A-D) Fact-Heavy Problem (Part of an Issue-Spotting Q) Assume for Today Formalities are OK What facts in the problem support the position that K lacked capacity when she signed the will? I will push you on the strength of each fact and whether other info would help you determine its strength

14. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K lacked capacity when she signed the will? • Meds: K says sometimes can’t remember cancer • Expected effects of meds genlly? • Meds in system during ceremony? • K’s statement exaggeration or accurate? • Having a very bad day/In and out of focus • Seems to have forgotten will ceremony (tho recognizes W) • On earth as it is in heaven (Lord’s Prayer and “will”) • BUT seems to come back into focus before signing

15. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K lacked capacity when she signed the will? • Disease/Imminent Death • Clutches chest; collapses immediately after & never regains consciousness • Near death wills common; not enough to show lack of capacity; need more • What sort of cancer? Expected effects of? • Problems w assets (goes to 1st prong of traditional test) • Missing jewelry (though forgetting or losing some not incapacity); • Estate much less than W believed • K didn’t contradict when W said estate worth millions • BUT not clear she agreed (smiled sadly) • Also cost of last illness might deplete estate.

16. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K had capacity when she signed the will? Again, I will push you on the strength of each fact and whether other info would help you determine its strength

17. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K had capacity when she signed the will? • Gifts Generally Make Sense/Natural Objects • Grandchildren: • K’s only relatives each named and get gift • Favorite gets more than others • Rational explanation for why relatively small gifts • Even if court thinks these are only Natural Objects, test only requires understanding who they are, not that they get whole estate • Alma Mater  Small Farm • Friends  Jewelry • ACS  Residue: Well-known charity re her disease (& may not be much left)

18. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K had capacity when she signed the will? • Seems Focused at Time of Signing (Could be “lucid moment”) • must get it done; • tea to clear my head; • gotta do this right now • Signed in right place • Thumbed thru Will Before Signing • Making sure it’s what she wants? Might be too casual/cursory • BUT she was sent copy already so maybe just quick check to make sure it’s same document

19. UNIT TWO: WILLS CHAPTER 3 WILLS: PROTECTING TESTAMENTARY INTENT Section 3.3: External Factors

20. Intro to Chapter 3.3: External Factors (Recap) Restatement (Third) of Prop.: Donative Transfers §8.3 Undue Influence, Duress, or Fraud. (a) A donative transfer is invalid to the extent that it was procured by undue influence, duress, or fraud. ([A]pplies to all donative transfers, inter vivos and testamentary; also applies to making of a donative transfer and revocation of one. See Cmt. A) Fla. Stat. §732.5165 Effect of fraud, duress, mistake, and undue influence.—A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.

21. Undue Influence Restatement (Third) of Prop.: Donative Transfers § 8.3 Undue Influence, Duress, or Fraud ***** (b) A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made [or caused the donor not to make a donative transfer the donor otherwise would have made.] *****

22. Undue Influence: Direct Evidence Direct evidence is difficult to obtain because the best witness (the decedent) is dead at the time of litigation and the proponent has an interest in concealing the wrongdoing. Sometimes, however, undue influencers document the procurement of a will, thinking it will help validate the instrument. You can watch the following video to see an example of the recording backfiring. (The attorney in Q was disbarred). Mary Ellen Bendtsen: https://www.youtube.com/watch?v=C-maquqQT58

23. Undue Influence: Circumstantial Evidence Raising Inference Most undue influence cases are established by circumstantial evidence: In the absence of direct evidence, circumstantial evidence is sufficient to raise an inference of undue influence if the contestant proves: the donor was susceptible to undue influence, the alleged wrongdoer had an opportunity to exert undue influence, the alleged wrongdoer had a disposition to exert undue influence, and there was a result appearing to be the effect of the undue influence. Restatement 3d of Property (WODT) §8.3, Comment e. Note that proof of each of these four requirements itself is likely to require multiple facts (and often overcoming some contradictory facts) Some courts may (but need not) accept the inference of undue influence as sufficient proof that it occurred.

24. Undue Influence: Circumstantial Evidence Raising Rebuttable Presumption A contestant may raise a rebuttable presumption of undue influence “if the alleged wrongdoer was in a confidential relationship with the testator, and there were suspicious circumstances surrounding the preparation, formulation, or execution of the [will].” See Restatement 3d of Property: (WODT) §8.3 comment f (italics not in original). If the contestant successfully raises a presumption of undue influence, the burden shifts to the proponent to rebut the presumption and prove the will was procured in good faith.

25. Undue Influence: Elements of the Rebuttable Presumption (recap) To establish a rebuttable presumption of undue influence, the contestant typically must show: that the wrongdoer was in a confidential relationship with the testator; and the existence of suspicious circumstances relating to the will.

26. Undue Influence: What are Confidential Relationships? 1. Fiduciary relationships (e.g., trustee-beneficiary, attorney-client, holder of a power of attorney, guardian-ward) are generally presumptively confidential because the agent has a settled legal obligation not to abuse the principal’s trust. 2. Reliant relationships are relationships based on special trust and confidence (e.g., doctor-patient, financial advisor-client). 3. Dominant-subservient relationships (e.g., relationship between a caregiver and an ill, disabled, or weakened individual) are confidential when the facts show that the testator was dependent on or subservient to the alleged wrongdoer. Sometimes these categories of relationship overlap.

27. Undue Influence: Evidence of Suspicious Circumstances: from Restatement §8.3, Comment h (1) the extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore susceptible to undue influence; (2) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute; (3) whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or will substitute; (4) whether the will or will substitute was prepared in secrecy or in haste;

28. Undue Influence: Evidence of Suspicious Circumstances: from Restatement §8.3, Comment h (5) whether the donor’s attitude toward others had changed by reason of his or her relationship with the alleged wrongdoer; (6) whether there is a decided discrepancy between a new and previous wills or will substitutes of the donor; (7) whether there was a continuity of purpose running through former wills or will substitutes indicating a settled intent in the disposition of his or her property; and (8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.

29. In re of Estate Kurrle No. 295841, 2011 WL 1198198 (Mich. Ct. App. Mar. 31, 2011) One son (Respondent =R) takes mother’s whole estate. Brothers claim Undue Influence. To create presumption of UI in Michigan, need: • Fiduciary Relationship: • Parent-child r-ship not presumptively confidential, BUT individualized facts can establish “a reposing of faith, confidence, and trust, and the placing of reliance by one on the judgment and advice of another.” Here, • “The decedent made R her joint bank account holder, trusting him to make financial decisions on her behalf should she become unable. • R resided with the decedent, indicating a certain level of trust, and she relied on R’s presence so that she would not be alone. • R held the decedent’s financial power of attorney, thus agreeing to act only for the her benefit, and a fiduciary relationship arose as a matter of law.”

30. In re of Estate Kurrle No. 295841, 2011 WL 1198198 (Mich. Ct. App. Mar. 31, 2011) To create presumption of UI in Michigan, need: • Fiduciary Relationship (2) Fiduciary Benefits from Transaction: Transferred her home and entire estate to R disinheriting his brothers. (3) Fiduciary Had Opportunity to Influence Grantor’s Decision : • R had lived with the decedent for more than 13 years preceding her death.” • Despite the decedent’s compromised mental state, R admits that he obtained a notary and a witness and stood by as the decedent, suffering from confusion, transferred her home and the entirety of her estate to him. Thus, burden shifts to R to try to rebut the presumption

31. In re of Estate Kurrle No. 295841, 2011 WL 1198198 (Mich. Ct. App. Mar. 31, 2011) Burden shifts to R to try to rebut the presumption • R claimed there was no evidence he put pressure on his mother • Court said that doesn’t matter because the burden had shifted. • Showing lack of evidence of one aspect of UI was thus insufficient. • R needed to put forth affirmative evidence to rebut the presumption and he had none.

32. Section 3.3.1: Undue Influence (Last Names A-D) For each of the three subsections of Oklahoma Statute §15-61, what kinds of cases do you think the Oklahoma legislature was concerned about? Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him. • This is a version of the “confidential relationship” test we just went over for the UPC. However, the statutory language does not, on its face, shift the burden of proof.

33. Section 3.3.1: Undue Influence (Last Names A-D) For each of the three subsections of Oklahoma Statute §15-61, what kinds of cases do you think the Oklahoma legislature was concerned about? Undue influence consists: 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. • Two key distinctions probably intended: • #2 targets mental or personality weakness; #3 targets physical weakness • #3 requires a greater showing of unfairness • My notion: don’t want to make it too easy to bring claims against caretakers. • Very nice Collado idea that grantor under #3 must be clear mentally or case would fall under #2.

34. Section 3.3.1: Undue Influence Second Q after Oklahoma statute (not assigned): Is there a sensible way to distinguish between undue influence and cases where somebody’s kindness or hard work persuades the testator to leave them money or property?

35. Duress Restatement (Third) of Prop.: Donative Transfers § 8.3 ***** (c) A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made [or that coerced the donor not to make a donative transfer the donor otherwise would have made]. ***** Duress is a stronger form of coercion than undue influence, but resides along the same spectrum of misconduct. Duress and undue influence claims are sometimes brought together.

36. In re Estate of Rosasco 927 N.Y.S.2d 819 (Sur. Ct. 2011) 45 Morton Street, New York, NY (West Village)

37. In re Estate of Rosasco 927 N.Y.S.2d 819 (Sur. Ct. 2011) Straightforward case finding • No UI because no evidence of weakness of T and lots of time had passed since will executed where T wasn’t under control of beneficiary. • Prima facie case of duress because T was afraid beneficiary would hurt her or another person if she changed will.

38. Fraud: Common law elements of the tort an intentional misrepresentation of (or failure to disclose) material fact made by one person to another with knowledge of its falsity for the purpose of inducing the other person to act and upon which the other person reasonably relies in taking action resulting in injury or damages. Fraud may also by made by an omission or purposeful failure to state material facts, if that nondisclosure makes other statements misleading.

39. Fraud Restatement (Third) of Prop.: Donative Transfers § 8.3 ***** (d) A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not otherwise have made. ***** Fraud in the inducement: misrepresentation of important factors (falsely telling the testator lies about her daughter to influence the estate plan). Fraud in the execution: intentionally misleading a person about the contents of a document (asking a person to sign a will but telling them it is really a birthday card).

40. Problem 3.5 (Last Names E, R-Z) A few months after meeting Charlie, during one of her weekly visits, Sally presented Charlie with a fabricated obituary purporting to report the accidental death of Charlie’s son during a sales call in Asia. Grief stricken, Charlie executed a duly attested will leaving his entire estate to Sally. He died a month later. Assuming Charlie’s son can prove these facts, what is his strongest legal argument? When Charlie Met Sally (Part I)

41. Problem 3.5 (Last Names E, R-Z)When Charlie Met Sally (Part II) A few months after meeting Charlie, during one of her weekly visits, Sally presented Charlie with a document that purported to be his Last Will and Testament. The instrument devised Charlie’s entire estate to Sally. Seeking to trick Charlie into signing the document, Sally turned to the signature page and told Charlie he needed to sign a purchase order for a new collection of antiques he had planned to buy. Charlie signed the document and died a month later. Sally then forged the signatures of attesting witnesses and presented the instrument for probate. Assuming Charlie’s son can prove these facts, what is his strongest legal argument?

42. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES Introduction & Section 4.1.1: Attested Wills

43. Wills Formalities Generally “Wills Act formalities” refer to the formal requirements for the creation, revocation, and revival of a will. • Some history in casebook pp. 113-14 (background for you) • Useful vocabulary you should learn on pp.115-16 • If will is created without the formalities required by state in Q, • Most states automatically reject the will (“strict compliance”) • Some states will probate the will under limited circumstances (Section 4.1.3 Next Class) Requires thinking about purposes for formalities.

44. Wills Formalities Generally “Wills Act formalities” refer to the formal requirements for the creation, revocation, and revival of a will. They serve four functions (see casebook @ p.114): • Protective function (ceremony and witnesses help to protect Testator (T) from fraud/duress/undue influence) • Evidentiary function (ceremony and witnesses provide evidence that will is authentic expression of T’s intent) • Ritual (“Cautionary”) function (ceremony impresses on T seriousness of what is happening=”Whoa, Dude” effect) • Channeling function (formalities help T to express intent in forms/language recognizable to legal system)

45. Problem 4.4 For Last Names C-J Next Class The question presented is, did the testator satisfy the signature requirement by signing the affidavit attached to the will even though the will itself lacks a full signature? Big messy problem. Try to find best arguments you can for each side given Tennessee Statutes provided.

46. Formalities for Attested Wills • Attested Wills = Witnessed Wills as opposed to • Holographic Wills = Handwritten; about half the states allow (Section 4.1.2) • Non-Cupative Wills = Oral; a few states allow in limited circumstances (We’ll briefly touch on in Section 4.1.2) • Florida only allows Attested Wills (See Fl. Stat. §732.502(2))

47. Formalities for Attested Wills • Must be in Writing (true in every state) • UPC § 2-502(a)(1) • Fl. Stat. §732.502

48. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature • Can be • by T; OR • in the T's name by some other individual in the T's [conscious] presence* and by the testator's direction. (All states do some version of this to address at least physically incapable Ts) • UPC § 2-502(a)(2) • Conscious presence = The T, through sight, hearing, or general conscious-ness of events, comprehends that the individual is performing the act • Fl. Stat. §732.502 (1)(a) [omits “conscious”]

49. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature • Can be (i) by T; OR (ii) in the T's name by some other individual … • Some states (not UPC) signature must be at “end” of will • Fl. Stat. §732.502 (1)(a) • Purpose seems to be to prevent additional provisions from being added by someone else. • Creates Qs about what constitutes “end” • E.g. big space between last substantive provision and signature line • See Pennsylvania test: “logical and sequential end.”

50. Formalities for Attested Wills Some states (not UPC) signature must be at “end” of will • Fl. Stat. §732.502 (1)(a) • Creates Qs about what constitutes “end” • In re Schiele’s Estate, 51 So. 2d 287 (1951): The case upholds a will against a challenge that it wasn’t signed at the end where the testator’s signature followed the attestation clause (where the witnesses sign), rather than following terms of the will. The court noted that many courts say the requirement is fulfilled as long as signature is “below all the disposing portions of the will.”