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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.

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Wills and Trusts

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    1. Wills and Trusts Professor Jenkins

    2. “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.

    3. Property Destruction Orders Under the Will • Court Will: • Weigh social utility of destruction against loss to society of valuable resource. • Weigh motivation of testator.

    4. 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

    5. 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.

    6. Venue • First sought in primary or domiciliary jurisdiction (where decedent was domiciled at time of death).

    7. Intestacy- Statutes of Descent Descent and Distribution Section 45-Community Property Disposition of Whole Community

    8. 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

    9. 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

    10. Separate Property Probate Section 38(a)

    11. 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)

    12. Other Property • Unmarried W/Kids • To Kids equally per stirpes • Unmarried No Kids • ½ to MOM & ½ to DAD

    13. Real Estate • Married w/ Kids 1/3 SS for life 2/3 to kids equally

    14. Married – No Kids Real Estate ¼ to MOM ½ to SS ¼ to DAD

    15. Other Property • Married W/Kids 1/3 SS 2/3 to Kids Equally

    16. Married-No Kids Other Property ALL TO SS

    17. Half Blood S Half 1/5 Section 41 B, D Whole 2/5, 2/5 A (Decedent)

    18. 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

    19. Sound Mind-Capacity Test

    20. 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

    21. Testator must have mind & memory relevant to all the thingsANDMust understand the significance of her acts!

    22. Relate To Time Of Execution Direct Bearing on Testamentary Act Other Factors ACTS

    23. 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

    24. 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.

    25. Section 61 • If no corroboration, and intestacy occurs, interested subscribing witness takes. • LESSER OF WILL SHARE OR INTESTATE SHARE.

    26. 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

    27. 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

    28. 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


    30. NO partial revocation by physical act in Texas If will is not found - Presumption of revocation by physical act.

    31. Integration • Asks: • Which pages present @ the time of signing comprise T’s duly executed will? • Look for: • internal continuity • staples.

    32. Republication By Codicil An implied restatement or rewriting of the language of a valid will as of the date of the codicil.

    33. 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.

    34. 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.

    35. 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

    36. Joint Will The wills of 2 or more individuals in one instrument

    37. Reciprocal Wills Separate reciprocal wills which mirror each other.

    38. Mutual Wills Joint or reciprocal wills based on a contract between testators.

    39. 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)

    40. BASIS OF CONTRACT • Survivor will not revoke • Contract Law Applies • Then Wills Law Applies • Remedy: Constructive Trust