Wills and Trusts Professor Jenkins
“In Terrorem” Clause • “A beneficiary shall forfeit his bequest under the will if he contests the validity of the will.” • Rule: Is valid in Texas, but will not apply to an attack on the will that is based on reasonable grounds and instituted in good faith.
Property Destruction Orders Under the Will • Court Will: • Weigh social utility of destruction against loss to society of valuable resource. • Weigh motivation of testator.
Probate or administration of estate of living person-VOID. Probate of one believed to be dead proved by circumstantial evidence 4 year statute of limitations (unless proof that party was not in default-muniment of title only) Probate of Lost Will Date of execution Executor Probate Process
Proof Required • Person is deceased. • 4 years have not elapsed since date of death. • Court has jurisdiction and venue. • Person applying for “letters” is qualified.
Venue • First sought in primary or domiciliary jurisdiction (where decedent was domiciled at time of death).
Intestacy- Statutes of Descent Descent and Distribution Section 45-Community Property Disposition of Whole Community
Real Estate • Married-No Kids - • All TO SS • Married W/Kids of Surviving Spouse- • ALL TOSS • Married-Kids not Kids of Surviving Spouse- • 1/2SS & 1/2 KIDS
Other Property • Married-No Kids- • ALL TO SS • Married W/Kids of Surviving Spouse- • ALL TO SS • Married –Kids not Kids of Surviving Spouse- • ½ SS & ½ Kids
Separate Property Probate Section 38(a)
Real Estate • Unmarried-W/Kids • To Kids equally per stirpes • Unmarried-No Kids • ½ to MOM & ½ to DAD (or brothers and sisters in place)
Other Property • Unmarried W/Kids • To Kids equally per stirpes • Unmarried No Kids • ½ to MOM & ½ to DAD
Real Estate • Married w/ Kids 1/3 SS for life 2/3 to kids equally
Married – No Kids Real Estate ¼ to MOM ½ to SS ¼ to DAD
Other Property • Married W/Kids 1/3 SS 2/3 to Kids Equally
Married-No Kids Other Property ALL TO SS
Half Blood S Half 1/5 Section 41 B, D Whole 2/5, 2/5 A (Decedent)
Will Execution-Section 57 • Who may execute? • One who is over 18 years (or married or a member of the armed forces). • Of sound mind
Testator Must Know . . . • Nature & Extent of his/her property. • Persons who are “natural objects of her bounty.” • The disposition being made. • How these elements relate to form an orderly plan for distribution. • These only set the stage
Testator must have mind & memory relevant to all the thingsANDMust understand the significance of her acts!
Relate To Time Of Execution Direct Bearing on Testamentary Act Other Factors ACTS
Insane Delusion • Delusion- false conception of reality • Insane Delusion- false conception of reality to which testator adheres against all reason and evidence to the contrary
Execution by Interested WitnessTX Section 62“Purging” Statute • A bequest to subscribing witness shall not be void if his testimony proving the will is corroborated by… • ONE OR MORE DISINTERESTED and CREDIBLE PERSONS. • Anyone present at the execution.
Section 61 • If no corroboration, and intestacy occurs, interested subscribing witness takes. • LESSER OF WILL SHARE OR INTESTATE SHARE.
Will RevocationIntent & Capacity RequiredSection 63 • By subsequent • Will • Codicil • Declaration in writing, executed with like formalities • By T • Destroying • Canceling Or causing it to be done in his presence
DRRDoctrine of Dependent Relative Revocation & Revival • Allows court to disregard a revocation based on a mistake of law or fact. • TEXAS • “No Revival of a Revoked Will” • JURISDICTION
SIMILAR PROVISIONS WILL 1 10,000 to A Gold watch to B House to C $5,000 to D $3,000 to E Residuary to X WILL 2 15,000 to A Gold watch to B House to C Residuary to X
IN TEXAS, IF T DESTROYS WILL # 2 THINKING HE IS REVIVING WILL # 1, COURT WILL REVIVE WILL #2 UNDER DRR.
NO partial revocation by physical act in Texas If will is not found - Presumption of revocation by physical act.
Integration • Asks: • Which pages present @ the time of signing comprise T’s duly executed will? • Look for: • internal continuity • staples.
Republication By Codicil An implied restatement or rewriting of the language of a valid will as of the date of the codicil.
Incorporation By Reference • Applies only when instruments that NEVER HAD testamentary life are incorporated into a will and given TESTAMENTARY EFFECT • 1. Will must refer to writing IN EXISTENCE with reasonable certainty. • 2. Will description corresponds to description and was the one intended by T.
A Devise of Contents:Section 58 (d) (1) • Does mean tangible, personal property • Does not include tangibles, choses in action, “titled” personal property represented by a certificate of ownership requires a formal title transfer. • Caveat: One must expect to find item in such a location.
Example • WILL STATES “I leave the contents of my iron chest to Mary.” At death, the chest contains: • Passbook with $5,000 showing on deposit • $5,000 • Automobile title to antique Mercedes Benz • Diamond tiara worth $1,000,000
Joint Will The wills of 2 or more individuals in one instrument
Reciprocal Wills Separate reciprocal wills which mirror each other.
Mutual Wills Joint or reciprocal wills based on a contract between testators.
Contractual Wills • Two Types • Contract Not Revoke • Contract To Will • TX: Section 59 A • State a contracts exists • Contain material provisions of the contract • (Contract may be incorporated by reference into the will if all elements are met)
BASIS OF CONTRACT • Survivor will not revoke • Contract Law Applies • Then Wills Law Applies • Remedy: Constructive Trust