Wills Why dont more people have wills?

? o Empirical studies show some people dont want to talk about their own mortality o Procrastination o Difficult making decisions o Hardest to decide who takes over UPC Uniform Probate Code Adopted by many states. Florida is different. Where does property go without a will? Through intestacy. Terminology o Real Property Land and the buildings attached thereto o Personal Property Anything that isnt real property (defined by exclusion) Tangible Property you can touch (i.e. pen, book) Intangible (i.e. stocks, bonds) o Old Terminology (i.e. Last Will and Testament) Will Real Property Testament Personal Property o Will Serves many functions: Disposes of testators property, revoke a prior will, appoint a personal rep, and serve other objectives. Real Property Land, Buildings, and the things affixed hereto. o Die with will v. die intestate (without will) o Decedent Testator Man who dies with a (valid) will Testatrix Woman who dies with a will Intestate decedent (or simply intestate) Person who dies without a will o Recipient Devise Transfer of real property through a will (recipient: devisee) Can refer to real and personal property now as a devise. If the judge makes the distinction between devise and legacy, use legatee. Legacy Transfer of personal property through a will (recipient: legatee) FL Devisee The recipient of anything through a will Heir (at law) Receive real property through intestacy Next of Kin Receive real property through intestacy FL Beneficiary (both devisee & heirs) Receive real property through intestacy. o Personal Representative Executor/Executrix Administers with will Administrator/Administratix

Will
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Intestate (w/o Will)

Decedent Recipient

Testator/Testatrix Intestate Devisee (real prop)/Legatee (personal prop) Heir (real) /Next of Kin (personal) In FL -> DEVISEE In FL > HEIR

In FL > BENEFICIARY is anyone who receives prop under either will or intestate Will Personal Rep Executor/Executrix Intestate (w/o Will) Administrator/Administratix

In FL -> PERSONAL REP = administers the probate estate (either thru will/intestate) o Probate v. Administer Probate A distribution of assets of a deceased (either through the will or the intestacy statute) transfer of property by the decedent at death Probate property goes through the will/intestacy process. Probate serves, in part, to transfer title from the decedent to someone else. Not all property is probate property. If it was not property held by the decedent it is not probate property. Nonprobate property also referred to as will substitutes. Outside the probate process. Common types of nonprobate property (p. 19) Automatic in the Survivors: 1. Survivorship Property Property held as Tenancy by the entirety (TBE) or Joint Tenancy with right of survivorship. Distinguish among TIC (no right of survivorship), JT, and TBE (only JT and TBE include the feature of right of survivorship) ***MAKE SURE TO KNOW THE DISTINCTIONS ADD*** Compare Concurrent Estates JT; TIC; or TBE o Joint Tenant can convey but cant devise/transfer at death because of survivorship feature (i.e. A, B, & C are joint tenants) B dies A & C get property. FL has a presumption of TIC when two persons are not married therefore if you want the property to be held with right of survivorship, these words must be used in the document conveying the property. F.S. 689.15 (right of survivorship). o Tenancy in Common can convey and devise/transfer at death is a probate property. When A dies, a valid will would be consulted. No valid will, intestacy statute would apply.

2.

3.

4. 5. 6.

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o Tenants By the Entirety one spouse cant convey (w/ out the other) nor devise/transfer at death because survivorship, not probate property. FL Stat. 689.15 Estates by Survivorship If you want to include a joint tenancy, you have to expressly provide right of survivorship. If not it would be a tenancy in common. Life insurance proceeds where the decedents estate is not the beneficiary because it is not a transfer of property by the decedent at death. (contract between Insured/Owner & Insurance Company) (Recognized 3rd party beneficiary contract/contract between two people for the benefit of a third) Not a property transfer, there is no property held by the decedent so there is no probate. THIS IS A CONTRACT RIGHT, NOT A PROPERTY RIGHT. Parents Policy o Face Amount $500,000 Primary Beneficiary: o Spouse Secondary Beneficiary (should the spouse not be alive.) o Children o Proceeds can become probate property if the spouse and the children had died before the insured and the policy was not changed or the named beneficiary dies with the insured. Proceeds would then be paid to the estate to go through the will or probate process. FL Stat. 222.13 Life insurance policies; disposition of proceeds Exempt of claims of creditors of decedent Pay on Death (POD); Transfer on Death (TOD); and In Trust For (ITF) accounts (In FL and most states Statutes control process) POD (bank accounts) TOD (securities accounts and ITF o (death payment designation is a contract between account owner and financial institution. It is a K right and therefore not probate property) If designated beneficiary predeceases then it is probate property. Pension plans (e.g., IRAs, 401Ks) the interest automatically vests to the named beneficiary and is a nonprobate property. Annuities Intervivos Trusts This is created when the person is still alive. Since the trustee has the title already (already transfered) then there is no need for probabte. The decedents death is irrelevant since the decedents death doesnt affect transfer because it transfers during life. Powers of Appointment - Power to distribute, not a property interest.
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8. Homestead 9. Wrongful Death Benefits 768.20 & 768.21 WHAT HAPPENS IF A PERSON DIES W/OUT A WILL? It goes through a process which is controlled by the States intestacy statute. Intestacy Spouse and Descedants The Probate Assets are not the same as Estate Assets for Estate Tax purposes. SEE LAST PAGE OF CHP 1 FOR A REFRESHER. Probate Assets o State law concept o Tells you which assets go through the probate process and are administered either through a will or intestacy (transfer of property of decedent at death) o Property that passes by will or by intestacy o Different between probate estate and the gross estate for federal income tax purposes. Gross Estate Assets Much larger than probate estate o Federal tax law concept, not a state law concept, and is much bigger than probate o Includes more than just probate assets o Probate assets + assets in which the decedent had a particular interest (probate estate and certain non-probate property when decedents had incidents of ownership of certain power) *DISTINCTION BETWEEN PROBATE ASSETS AND GROSS ESTATE ASSETS Nonprobate Assets Life insurance (contract), 401 K, intervivos trusts, joint tenancy and survivorship property, retirement, homestead o (e.g., Insurance proceeds not probate but if insured had incidents of ownership then proceeds part of Gross Estate for estate tax) o Incidents of Ownership Certain rights in the insurance policy. Includes many powers of the insurance policies including the right to change beneficiaries. Ex. right to borrow from the insurance policy. Intestacy Why does decedents property/assets go through intestacy? o Decedent never wrote a Will o Attempted Will deemed invalid (e.g., improperly executed, undue influence, lack of capacity, fraud, etc.) o Will revoked by the testator if will is revoked properly, decedent dies intestate o Could have Partial Intestacy Decedent has valid will that doesnt dispose of all probate assets. No residuary clause All of the rest of the estate goes to A. No living beneficiaries to take residuary property (residuary devisee predeceased testator and anti-lapse statute does not apply) o Hypo: D had a will that said artwork to F and rest of estate to G. G predeceases D, so there is partial intestacy unless G falls within the category prescribed under the anti-lapse statute and G also has
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decedents in that case, Gs decedents would take under antilapse. F still gets artwork, but there is no one to take residual assets, so they go to states intestacy statutes. Can try to block intestacy from happening by telling client that if there is any major event (birth, death, divorce) to notify an attorney to make a change in the will. A backup residuary devisee (usually a charity) can also be used or an intervivos trust. o Decedent can die and give everything to charity; or have residuary go to a trust o If die w/ out valid will, states intestacy statute governs o FL Stat 732.101 Intestate estate: only applies to probate assets (does not include valid will, annuities, IRAs, etc.) probate estate is different from gross estate (which includes insurance proceeds, etc.) o FL Stat 732.102 Spouses share of intestate estate Who is a surviving spouse? A spouse is a legally recognized marital relationship. o Yes surviving spouse: Married at death Even if Separated, even if legally separated Even if in process of divorce o Not surviving spouse: Divorced Annulled 741.211 - No common law marriage in FL Common law marriages entered into before 1/1/68, shall be valid... Putative spouse gives spousal recognition to those who IN GOOD FAITH believed they were married. Hall v. Maal Ms. Hall and Dr. Maal Couple was engaged, planned to get married, had a ceremony but did not officially record the marriage. They had children and lived together as husband and wife. Ms. Haal filed for a petition for dissolution of marriage and Dr. Maal moved for dismissal based on the nonexistence of the relationship. Since there is no common law marriage in FL Ms. Hall would have to find an exception to this rule. COMPARED to Estate of Litzky and found the case was indistinguishable with this case wherein it was decided that Religious ceremony was NOT ENOUGH. COMPARED to Metropolitan Dade County v. Shelton ceremony on weekend, license finally issued Monday, same notary and witnesses and error by judicial clerk. This case was distinguishable since Ms. Hall DID NOT ACT IN GOOD FAITH and she knew for a fact they were not married since she never filed the paperwork and she also filed her tax statements separately. In unusual cases Estoppel prevents a spouse from taking from deceased spouses estate
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Estoppel Complete repudiation of the marital relationship by the person who is claiming to be the spouse later on (e.g., typically, party was married and entered into bigamist relationship and tries to claim surviving spouse) Example: Person enters into marriage with Husband 1, then enters into bigamist marriage with Husband 2, then when 1 dies, they claim to be spouse of H1. Court says that by entering into bigamist second relationship, they are estopped from receiving anything from Husband 1. o Estoppel to claim of spouse In re Estate of Butler p. 30 1946 1947 1950 1963 Georgia Mae They separate Georgia Mae Nathaniel & Nathaniel He says he marries marries Butler gets bought a James Rosa married divorce Whitfield Belle Georgia Mae, thought she was divorced based on Nat buying the divorce. Nathaniel and Rosa Belle have a child and adopt a child. Both are minors at Nathaniels death Georgia Mae then has more kids and is known as Mrs. Whitfield Case about applying the doctrine of estoppels to prevent Georgia Mae Butler from claiming to be a surviving spouse of Nathaniel Butler His children and Rosa Belle receive the estate. Who in that case could have made a claim as a putative spouse? Someone who cohabitated with another in the good faith belief that they were married Rosa Belle could make a good argument of putative spouse since she believed she was married. Court says that Georgia Maes good faith belief in her current marriage, repudiates her marriage to Butler Doherty v. Troxler o Husband abandons wife after 24 hours o Husband married wife to acquire an interest in her property o Never consummated by cohabitation o Husband later intentionally entered into a bigamous relationship o Court said there was a complete repudiation of marriage Minor v. Higdon o Prevented a surviving wife from claiming under her deceased husbands estate where the wife had remarried without obtaining a divorce from the husband, she said she didnt know she wasnt divorced but no excuse for contracting a bigamous marriage relationship with 2nd husband you cant reep benefits of the divorce such as remarrying and having children with a new spouse and then attempt to reep the benefits of the decedent based on still being married to the previous spouse. o Not a spouse if divorced, if marriage to decedent was annulled, or if estoppels applies Estoppel-look for complete repudiation of marital status
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o o o o

o o o

o o

What about entering into a marriage originally? Common Law marriage is not recognized in FL, but some other states still do. FL Stat 741.211 Common Law marriage is void after 1968 Fl Stat 741.211 Does not recognize common law marriage but does recognize Putative Spouse. Putative spouse thought they had entered into a marriage in good faith and took substantial compliance with this chapter (how you get marriage license and what you do with it). Living together is not enough, since common law marriage is abolished. No common-law marriages entered into after Jan. 1, 1968, shall be valid except that Nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter (putative spouse) If you have a client who lives with someone and they are not married, the intestacy statutes will not protect them. What should they do if they want to make sure at their death that their loved one gets their assets? They could set up a life insurance contract, an intervivos trust, name them as beneficiary as non-probate assets, put property with right of survivorship, or write a will. Spouse Status Except for estoppel and spouse status remains even if separated or in middle of a divorce but it is not finalized. Hall v. Maal (TWEN Case) Pre-nup not done so didnt get license before ceremony Had wedding ceremony anyway 1 year later applied for license but never filled it in Lived together and had 2 children Were they married? Wife was arguing that she fit into the exception of statute and was a putative spouse Court focused on substantial compliance requirement and reasoned that: There was no substantial compliance because wife knew everything that was required of her and didnt do it. some compliance would, at minimum, entail the parties applying for and receiving a license Problem 1 H dies intestate H predeceases W Hs parents dead H & W had no children H had $500,000 in assets FL How much would W get under FL intestacy statute? FL Stat 732.102(1) wife gets full $500,000 If there are no descendants the wife receives the full amount.

o Problem 2 H predeceases W Hs mom alive Again H & W had no children

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H had $500,000 in assets FL How much would W get? FL Stat 732.102(1) wife gets full $500,000 UPC 2-102 Parent would retain some amount. o Problem 3 H predeceases W H & W have 1 child, C1 Neither H nor W have any other children H had $500,000 in assets FL How much would W get? FL Stat 732.102(2) o W gets $500,000 FULL AMOUNT o How much would C1 get? Fl Statute 732.102(2) NOTHING C1 would get Nothing THIS IS A CHANGE the CHILD USE TO GET SOMETHING. o UPC 2-102(1)(ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent Wife receives all of the estate. Assumes the surviving parent would take care of the children. Risk The surviving spouse may get remarried and have more children and a new spouse and the child of the first marriage may not get what the decedent would have wanted. o Problem 4 H predeceases W H & W have 1 child, C1 H has a child from a previous marriage C2 H had $500,000 FL How much would W get? FL Stat 732.102(3) W gets $250,000 How much would C1 & C2 get? 732.103(1) Share the balance ($250,00 each child gets $125,000) o Problem 4 Variation H predeceases W H & W have 1 child, C1 W has a child from a previous marriage, C2 H had $400,000 in assets FL How much would W & C1 get? $200,000 $200,000 o Stepchild does not take under intestacy What if no spouse or lineal descendants?
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o Parents 732.103(2) If there is a father or mother they get to split the entire estate equally and if only one survives then they get the whole estate (or to the survivor of them language in statute) o What if no spouse, no lineal descendants, and no parents left? Brothers and sister of the decedent and their descendants. Siblings and their descendants (nieces & nephews) 732.103(3) What if no spouse, no lineal descendants, no parents, and no siblings or their descendants left? Divide estate paternal grandparents and maternal grandparents 732.103(4) even if only one grandparent alive from maternal, they get 50% and the other 50% goes down the paternal grandparents descendants Grandparents then descendants of grandparents 732.103(4) (not siblings of grandparents) o What if none of the above around? Last Deceased spouses relatives (kindred) 732.103(5). (The inlaws/kindred of the deceased spouse as if the deceased spouse survived the deceased and died intestate, but not if they are divorced because then they are not a spouse.) o After that Then Escheat to FL 732.107 o Spouse 732.102 Problems 1: H Predeceases W. H & W have child, C1. W has a child from a previous marriage, C2. o 732.102(2) Spouse gets $165,000 o 732.103(1) - C1 gets the other half ( $165,00) because W had a child from a previous marriage therefore C1 gets half (whereas without the child from the previous marriage, C1 would get nothing until him mom dies). Problem 2: H, who was single and childless, died intestate. H was survived by the following: mother, 2 sisters, Uncle Fred. Uncle Fred was the only sibling of Hs father who died last year. Under Florida law how is Hs intestate estate distributed? o 732.103(2) If there is no descendant, the estate goes to the descendants father and mother equally, or to the survivor of them. 100% of the estate would go to the mother. Problem 3: H was survived by his maternal grandmother and maternal grandfather and his Uncle Fred. Uncle Fred was the only sibling of Hs father who died last year. Hs maternal grandmother and grandfather take 50% and Uncle Fred takes the remaining 50%.

Intestate Distribution Systems o Different representational intestate systems: 1. Per Stirpes by the roots divide immediate among person below who exists (FL) DIVIDE AT THE BEGINNING REGARDLESS IF THE ROOTS ARE NO ALIVE. 2. Per Capita with Representation by the head start splitting at generation nearest descendent with at least one living member

3. 1990 UPC (per capita with a twist) - start at generation nearest decedent with at least one living member & pool POOLING FUNCTION AT THE END. ***2 Basic Rules apply for ALL Distributional Systems Rule #1 A descendant cannot take if he/she has a living ancestor who is an eligible taker o e.g., Maternal grandmother dies and mom alive, grandchildren are not an eligible taker under any intestacy statute Rule #2 Disregard anyone who died without issue (descendants). o e.g., Mom had 3 kids but one predeceased leaving no children. Two living children each get o Family Tree P. 37 Per Stirpes: FL Albert, Ed, & Bob predeceased Isabelle $600,000 to distribute Albert () $300/000 & Ed () $300,000 Bob, Carol, and Diane (Alberts children) each split Alberts each get 1/3 & Elen gets Eds () If Carol predeceased, she would be disregard, split between Bob and Diane (Carols siblings) Barbara and Bill (Bobs children) split Bobs 1/3 and each get 1/6 Per Capita w/ Rep.: $600,000 Albert, Ed, & Bob predeceased Isabelle Start with Isabelles grandchildren Bob, Carol, Diane, and Ellen each get Barbara & Bill (Bobs children) split Bobs and each get 1/8 Here grandchildren are treated equally. Variation Ellen also predeceased Per Stirpes FL $600,000 to distribute Emma gets $300,000 () Albert Carol, Bob, & Diane get $100,000 (1/3) Bob is dead so his money gets split in half $50,000 each for Barbara & Bill (Bobs children) Variation Ellen predeceases Per Capita w/ Rep. Start at generation nearest descendent with at least one living member Bob, Carol, & Diane, and Ellen each get $150,000 (1/4) Ellen is dead so Emma (Ellens daughter) gets Ellens $150,000 Bob is dead so Barbara and bill split his $150,000 and each get $75,000 Variation Ellen predeceased 1990 UPC $600,000 to distribute Start at generation nearest decedent with at least one living member & pool what would have gone to that generation and separate among descendants. If you have more than one deceased member of a generation with descendants you pool the money and split amongst the next generation who have no one in the surviving generation. Carol (1/4) $150,000 and Diane (1/4) $150000 Barbara & Bill each get $100,000 and Emma gets $100,000 (pooled grandchildrens $300,000 and split)
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Variation: Ellen, Bob and Carol predeceded. Per Stirpes Florida $600,000 to distribute. $300,000 to each Albert and Ed. Do not skip a generation just because they are deceased. $300,000 on Eds side goes to Ellen. Ellen is deceased so it goes to Emman. The other $300,000 goes to Albert who is deceased. Next it is divided by his living children or deceased children with descendants, Bob and Diane who each get $150,000. Since Carol has no descendants she does not receive anything. Bob is deceased so Barbara and Bill each receive $75,000. Variation: Same Facts as above but per capita. Diane gets 200,000. Emma 200,000. Barbara and Bill each receive 100,000. 1990 UPC System. Skip Albert and Ed generation. Carol has no descendants so it is only divided by 3. Diane keeps the money. Pool Bob and Ellens assets together and divide by 3.

Review o 2 Rules of Distribution (1) Living ancestor blocks descendants (2) Someone who dies without issue is disregard o Types of Distribution 1. FL Per Stirpes divide immediate among person below who exists (FL) 2. Per Capita start at the generation with at least one living member 3. 1990 UPC start at the generation with at least one living member and POOL Who is a descendant? o Legally recognized parent-child relationship o Adopted Children o Modern trend treat the adopted child as if he/she had been born into the adopting family cutting off any ties to the birth parent & biological family. o 732.108 Adoption cuts off inheritance by or from birth (natural) parents with certain exceptions Stranger adoptions on require 732.108(1) Exceptions - 732.108(1)(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent's family.
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Exceptions - 732.108(1)(b) Adoption of a child by a natural parent's spouse who married the natural parent after the death (marriage must occur after the death of the natural parent) of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent. Exceptions - 732.108(1)(c) Adoption of a child by a close relative, as defined in s. 63.172(2), has no effect on the relationship between the child and the families of the deceased natural parents. 63.172(2) - For purposes for this subsection, a close relative of a child is the childs brother, sister, grandparent, aunt or uncle. Exceptions come into play for adoption with remarriage. READ STATUTE CAREFULLY SEE HIGHLIGHT 732.108(1)(b) Marriage before the death of the natural parent and the adoption after the death will cut off the child from his natural parent...this is screwy Kay v. Swartz (In re Estate of Kanevsky) Pg 42 Jacob dies without a spouse or decedents or parents. Therefore we must skip 732.102 and go to 732.103 (other heirs). Pursuant to 732.103(3) it goes to Jacobs siblings and their decedents. Paul and Zena are the decedents of the sibling (Nathan). Zena predeceased Jacob therefore it would go to her decedents. Perry is the adopted child of Zena and survived her and therefore it goes to Perry pursuant to 732.108. However, after Zenas death her husband remarries and his new wife adopts Perry. Pursuant to 732.108(b) an exception is created and therefore Perry is still entitled to the estate of Zena. Notes & Questions P. 52-53 o Problem 8(f) & (b) p. 53 Felix have child Charles. Felix dies. Millie remarries (Felixs death precedes remarriage). Henry adopts Charles. George (Felixs father) dies intestate. George Henry Millie Felix

Charles Can Charles inherit from George under FL law? o Yes, exception in Section 732.108(1)(b) o It is not 732.198(1)(a) would mean that Henry adopting Charles would not have any affect between Charles inheriting from Millie. It is not going to block from the other natural parent assuming the other natural parent has not given up their rights. o Problem 8(f) & (b) p. 53 Variation Felix and Millie have child, Charles. Millie and Felix divorce. Felix dies. Millie remarries (Felixs death precedes remarriage). Henry adopts Charles. George Dies. Can Charles inherit from George under FL law? Yes, exception in Section 732.108(1)(b) Only requirement is that she must marry the new man after the fathers death.
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o Problem 8(f) & (b) p. 53 Variation Felix and Mille have child, Charles. Millie and Felix divorce. Millie remarries. Felix dies (Millies remarryiage precedes Felixs death). Henry adopts Charles. George dies. Can Charles inherit from George under FL law? Compare Fla. Stat. 732.108(1)(b) with UPC S 2-114(b)(ii) Under UPC jurisdiction there is no marriage exception. It does not matter when the other parent marries the adopting spouse before or after the natural parents death as long as the adoption is after the natural parents death. This time Millie remarries before Felixs death. Charles cannot inherit because the general rule applies and there is no exception to cover him. o Problem 8(f) & (b) p. 53 Variation Felix and Mille have child, Charles. Felix dies. Mille remarries (Felixs death precedes remarriage). Henry adopts Charles. George dies. Millie dies. Can Charles inherit from Millie under FL law? Yes 732.108( a) Doesnt block from the natural parent who is married to the other spouse. o Problem 8(f) & (b) p. 53 Variation Felix and Mille have child, Charles. Felix dies. Mille remarries (Felixs death precedes remarriage). Henry adopts Charles. George dies. Millie dies. Henry dies. Can Charles inherit from Henry under FL law? Yes 732.108 He is now a part of the adopting family and can inherit from the adopting parent. Stepchildren and foster children? o Stepchildren not entitled to inherit from stepparents intestate estate (unless adopted) o Foster children generally cant inherit (There is a statute in California that allows foster children to inherit, but there are many steps and this is the only state that does this.) Check if equitable adoption/equitable adoption (Williams v. Estate of Pender p. 48; elements listed p. 50) THESE FACTORS MUST BE MET: 1. Agreement to adopt 2. Performance by birth parents of giving up custody 3. Performance by child of living in house alleged adoptive parents 4. Partial performance by alleged adoptive parents in taking child into home and treating child as their own 5. Intestacy of alleged adoptive parents What standard of proof required? Clear and convincing evidence Very hard case to win.

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732.108(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother's family. The person is also a descendant of his or her father and is one of the natural kindred of all members of the father's family, if: 732.108(2)(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. 732.108(2)(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph. 732.108(2)(c) The paternity of the father is acknowledged in writing by the father. Non-marital children? o UPC non marital child inherits from both biological parents UPC 2-114(a) Does not care if the parents were married. o FL 732.108(2) Descendant of mother (and mothers family) Descendant of father (and fathers family) if: (a) marriage ceremony even if void (b) Paternity established in court (even after death of father) (c) Paternity acknowledged in writing by father Afterborn Children o 732.106 Heirs of decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decdents lifetime. After-born children Problem 9 p. 53 Gerald Dad of Frank Died after Frank Frank DEAD Mary (732.102(2) would control Franks estate) January 1 Conceive

Cathy & Sammy (Twins conceived before but born after Death 732.106 would control the decendents of the decedents) Compare Fla. Stat. 732.106 with UPC 2-108
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Cathy can inherit from Frank or Gerald. UPC requires child to live at least 120 hours (5 days) after birth Half-bloods o Generally state statutes recognize relatives of the half-blood the same as relatives of the whole blood. o Florida? 732.105 Treats half blood relatives differently. Each half blood heir receives only half as much as a whole blood heir. If they are all half-blood they each get the whole. o Collateral relative? Relative of the decedent descended from an ancestor (parent, grandparent, or great grandparent) of the decedent. UPC Half & Whole are treated the same - whether they are half-blood or whole-blood. o Dadn died intestate with a private estate worth $240K. He was survived only by his three siblings, Adam, Betty, and Carol. Explan how Dans estate will be distributed if: o Problem 10(a) p. 53 Dan died intestate survived by brother Adam and sisters Betty and Carol (all whole bloods) (732.103(3)) - $80k each o Problem 10(b) p. 53 Dan died intestate survived by half brother Adam and half sisters Betty and Carol. Same dad, different mother. Dan Adam Betty Carol 732.103(3) and * 732.105 -;but if all are of the half blood they shall have whole parts $240,000/3 = $80,000 each o Problem 10 (c) p. 53 Dan died intestate survived by whole brother Adam and Betty and half sister Carol (Distribute Dans $240,000 intestate in FL -- UPC distributes evenly) (e.g., Dan and Adam and Bettry shared both parents but Carol is children of Dans dad and new wife) Dan Adam Betty Carol 732.105 Trick: Add whole bloods as if they were 2 people. So 2 Shares for Adam, 2 Shares for Betty, and 1 Share for Carol so divide by 5 then multiply by the amount of shares they are entitled to. Adam = $96,000; Betty = $96,000; and Carol = $48,000. o Problem 10(d) p. 53 Dan died intestate survived by two half sisters Betty and Carol and a whole brother Adam Dan Adam Betty Carol 732.105 Adam gets 2 shares, and Carol and Betty each get 1 so divide by 4 then multiply by the amount of shares they are entitled to. $240,000/4 = $60,000 for bloods and double that ($120,000) for whole blood) o Twen Quiz Ingrid died intestate survived by her whole brother Ben and her halfsister. Who can serve as a personal representative? o Need a PR for either an intestate or testate estate someone must divey up estate.
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o Introductory pages (707-08) of Chapter 33 including Fla. Stat. 733.301-733.305 o Fiduciary responsibilities covered in trusts class although fiduciary duties also apply to personal representatives. o Two issues as to who serves as PR: Who is Qualified to Serve & Who has Priority Qualification Fla. Stat. 733.302 Resident of FL at time of death of decedent and not disqualified. Fla. Stat. 733.303(1) Disqualifies anyone who: o (a) has been convicted of a felony o (b) is mentally or physically unable to perform duties of a PR o (c) is under 18 (Must be 18 at the time of death of the decedent.) Fla. Stat. 733.304 disqualifies nonresidents of FL except for the following closely related relatives of the decedent: o (1) legally adopted child or adopted parent (parent who adopted the decedent). Child or parent of adoption. o (2) lineal consanguinity (blood relative) (up and down parents and higher and children and lower) o (3) spouse OR brother, sister, uncle, aunt, nephew, niece, or someone related by lineal consanguinity to such person o (4) spouse of any person qualified by this section. Corporations cant serve unless they meet Fla. Stat. 733.305 requirements (basically trust companies or banks qualified to exercise fiduciary powers) Priorities In Appointment Many people can qualify, who gets appointed? Testate - Will o Fla. Stat. 733.301(1)(a) and 733.303(2) o Testate estates (with a will) PR named in will (assuming NOT disqualified) For some reason the PR is not named in the will or person named refuses to serve or person named is disqualified. Person selected by majority in interest in the estate. o Not a majority of the beneficiaries its the one who gets the most o Majority in interest means the beneficiary or group of beneficiaries that will receive the majority of the estate. o Will provides: $100,000 to my brother $100,000 to my sister $100,000 to my friend Fred $500,000 to my spouse Spouse is PR b/c spouse has majority in interest Intestate
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o Fla. Stat. 733.301(1)(b) o Intestate estates- DIED W/O A WILL SO PRIORITY = Spouse Person selected by majority in interest of the heirs Heir nearest in degree Person selected by majority in interest of the heirs o Not a majority of the intestate heirs. o Majority in interest means the beneficiary or group of beneficiaries that will receive the majority of the estate. o Harry is intestate and dies. Originally had 3 children (A,B,C) A and B are alive. C predeceased and left 5 children. Per sterpes (3 children each receive $200,000) Charles goes between the 5 children. 2 living siblings will be able to decide. TWEN Quiz Sally (sister lives in NY) Bob (convicted felon lives in FL) Jane (Florida predeceased spouses daughter) Spouses nephew did not work.

CHAPTER 3 WILL FORMALITIES Need two to tango. A will requires both: 1. Intent- mental elements If the testator did not have the capacity to enter into the will at the time of execution it is not valid. If the testator intended to do something instead, it is not a valid will. ISSUES Mental Capacity Fraud signed a doc thinking it to be a real estate K but signed a will instead. Duress Undue Influence FRAUD, UNDUE INFLUENCE, DURESS in marriage 2. Formalities- mechanical elements Technical formalities. Florida - 732.502 This is a conjunctive requirement. Mechanical elements are used as evidentiary purposes to serve as a cautionary function such as fraud. ISSUES: Signature of T not at end of will Witness signature issue not in presence of each other and T, not enough witness Purposes of Will Formalities mechanical elements CEPC Caution, Evidence, Protect, Channel 1. Cautionary Function o Ritual (signature, witnesses, etc.) serves to caution the testator as to the import of his actions. Cautions the testator that unless he changes it before his death, or lost capacity before revoking, the will disposes of the assets. If you fail to change it this is how your assets will be disposed of. 2. Evidentiary Function o Mechanical elements provide concrete evidence of testators intent regarding his property (physical record of testators intention).
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3. Protective Function o Witnesses requirement in particular designed to serve function of protecting testator from fraud (signature requirement somewhat because at least the testator looked at the document before signing it and did not sign the wrong thing). 4. Channeling Function o The more uniform the procedural parts of the will are the easier to administer. My own personal way to remember: (Not on notes in Powerpoint) - Even if you have intent, you also need the mechanics. You may want the car to work but without the mechanics it will not work because you cant run your car with intent alone.

You should use the maximum amount of formalities so that you are covered in all states and if your state uses less formalities and the state where the property was is has greater than your states mechanics will be insufficient and the will may be sufficiently contested.

Werner v. Estate of McCloskey Pg 57 Son named PR by his mothers will What did trial court do? It erred by appointing an alternate PR because of some undisclosed conflict 1st DCA reverses because trial court erred since son did not fall within any of the disqualifications under 733.303 and whatever conflict the court found was incorrect. Restatement (Second) of Property, Donative Transfers 33.1 (1992) 33.1 Meaning Of a Will **** c. Statutory formalities. **** [I]f the following steps are taken in the execution of a will, the will should have maximum acceptability in the various States. 1. The testator should examine the will in its entirety and the lawyer should make certain that the testator understands the terms of the will. 2. The testator and three persons who are to be witnesses to the will and who have no interest vested or contingent in the property disposed of by the testator's will or in the testator's estate in the event of an intestacy (Not a FL requirement that they have no interest but its better this way), along with the lawyer supervising the execution of the will, should be in a room from
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which everyone else is excluded. No one should enter or leave this room until the execution of the will is completed. 3. The lawyer supervising the execution of the will should ask the testator the following question: "Do you declare in the presence of [witness 1], [witness 2], and [witness 3] that the document before you is your will, that its terms have been explained to you, and that the document expresses your desires as to the disposition of the property referred to therein on your death?" The testator should answer "yes," and the answer should be audible to the three witnesses. 4. The lawyer supervising the execution of the will should then ask the testator the following question: "Do you request [witness 1], [witness 2], and [witness 3] to witness your signing of your will?" Again, the testator should answer "yes," and the answer should be audible to the three witnesses. 5. The three witnesses should then be so placed that each can see the testator sign, and the testator should then sign in the place provided for the testator's signature at the end of the will. The testator should also sign on the bottom of each page of the will. 6. One of the witnesses should then read aloud the attestation clause, which should provide in substance that the foregoing instrument was signed on such a date by the testator (giving the testator's name); that the testator requested each of the witnesses to witness his signing of the document; that each of the witnesses did witness the signing of the document; that each witness in the presence of the testator and in the presence of the other witnesses does sign as witness, and that each witness does declare the testator to be of sound mind and memory. 7. Each witness should declare that the attestation clause is a correct statement. 8. Each witness should then sign in the place provided for the signatures of the witnesses following the attestation clause. As each witness signs, the testator and the other two witnesses should be so placed that each one can see the witness sign. Each witness should give an address opposite his or her signature. If under the controlling local law the observance of certain formalities will make the will selfproving, and additional formalities to those listed above are required to make it self-proving, such additional formalities should be adopted. Preferred Method of Execution Maximum execution of any states formalities. Find in Restatement (Second) of Property 33.1. Print out and make into a checklist. It will tell you the order you will do in maximum formalities. o Lack of uniformity of choice of law rules 732.502 Florida does not require publication, but 732.503 requires publication requirement in order to be self-proved. You should always add the self-proof if you can, unless circumstances such as death in ICU, etc. Louisiana does require self-proof. FL does not allow holographic wills
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You should be familiar with other states law because your client could have real property located in another jurisdiction subject to ancillary probate in another jurisdiction. You want the other jurisdiction to give validity to your will. Also, your client could move and become domiciled in another state. o Comply with maximum formalities Recurring litigation regarding Mechanical elements Execution 1. Testators signature (intent of testator, location on the paper, proxy sign in presence of testator,) 2. Witnesses (number, disqualification, whether witnesses actually witnessed what is required by statute to be witnessed, and witness signature) 3. Presence Requirements Will Formalities Statute FL o 732.501 Who may make a Will o 732.502 Execution of Wills Must be in writing cant be just on computer, must be printed and hand signed. All wills executed in Florida must comply with paragraph one. Witnesses, sign at the end, etc. Florida does not accept unattested wills (no witness signatures). The majority of states do acknowledge a totally handwritten will that is unattested, reasoning is because it is difficult to fake a totally handwritten document and therefore not likely to be fraudulent. 732.501(1)c Witness must sign the will in the presence of at least two attesting witnesses. Paragraph 2 applies to wills executed in other states by a non-resident of Florida. Conflict of law statute. Note in Probate Code. If you are a resident of Florida paragraph 2 does not apply. If executed in other states it is valid in Florida with one exception. Exception: 732.501(2) Florida does not acknowledge a holographic will even if it was valid in a different state. Holographic will is handwritten by the testator without any witnesses. Most jurisdictions will allow holograph if primarily in the handwriting of the testator. However, if the holographic will is signed properly, by the required witnesses, then not considered holographic, its jsut a handwritten will with proper signatures. Florida does not require a computer, a will may be handwritten as long as it is witnessed complying with requirements of paragraph 1. o 732.503 Self-Proof Will Writing Requirement o 732.502 Every will must be in writing. DVDs dont count. Must be printed from the computer and signed. o All states (even UPC) require writing Testators Signature Requirement o FL - 732.502(1)(a)

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o 732.502(1)(a)(1) Requires that testators signature appear at the end of the document. Unless name was intended as signature, printed name is not a signature. In other jurisdictions if you can prove that you intended your printed name at the beginning of the will to be your signature, it could count after litigation. o Issues: (1) Did testator sign the will, and (2) Did testator sign in the right place? Can testator sign by mark? o Page 59 o Barron v. Williams (In re Estate of Williams), 182 So. 2d 10 (Fla. 1965) o Accepted prior that a witness could sign by a mark but had not decided about a testator. o Holding: A testator may sign his will by marking a mark if there is o INTENT: It is a matter of fact to be proved in the proper proceedings whether the testator made the mark with the intention that it be his signature. o Reasoning: If we allow signature by proxy, a mark should be allowed by the testator. Where on the will must testator sign? o 732.502(1)(a) o FL is one of very few states that mandates that the signature be at the end. o Page 61 In re Schieles Estate, 51 So. 2d 287 (Fla. 1951) o Testator signed in attestation clause, but not in the will. o Holding: Counts because it was at the end of the dispositive provision. What if Testator forgets to sign the will? o Page 66 o Dalk v. Allen 774 So. 2d 787 (Fla. 5th DCA2000) o See p. 67 two places for testatrixs signature left blank o Ceremony had her signing 8 documents. She signed the copies but not the original. o Holding: Will failed. What must witnesses actually witness? o Three possibilities 1. Witnesses must witness the testator actually sign his name (Strictest) 2. Witnesses must witness either (1) the testator signing or (2) the testators acknowledgement of his signature on the document (FL falls here) 3. UPC State: Witnesses must witness either (1) testators signature, (2) his acknowledgement of his signature, or (3) the testators acknowledgement of the document as his will. o What does FL require? o 732.502(1)(b) Witness must witness either testators 1. Signing or 2. Acknowledgement that he had previously signed or that his name had been signed by proxy. Other Witness requirement? o Fla. Stat. 732.502(1)(c) Attesting witness must sign the will.
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In re Estate of Charry p.69 o Mr. Charry wrote a codicil o Codicil did not have an attestation clause o Codicil did have a self-proof affidavit o Where did the two witnesses sign? o See 2nd from last sentence middle of page Better view is that attestation clauses and self-proof affidavits are not necessary or essential parts of a will but when incorporated into a will they are not improper parts of it Who can be a witness? P. 56 o FL o 732.504 o (1) Competent to be a witness (90.601; 90.603 (FL rules of Evidence Disqualified if cant understand) o (2) interested witnesses (beneficiaries under the will) dont invalidate o Most states unlike FL disallow interested witnesses o Footnote 3 - Statutes that disallow interested witnesses may have a purging statute (nevertheless the will would still be valid even if there was an interested witness) Spectrum of interested witnesses effect Disallows Disallows Disallows Allows Interested Interested Interested Interested Witnesses Witnesses Witnesses Witnesses No purging Strict purging Liberal purging Statute Statute Statute WILL WILL WILL VALID INVALID VALID BUT Beneficiary/ Beneficiary/ Interested witness Interested witness Forfeits amount of Forfeits entire devise in this will Devise that exceeds intestacy Or Previous will) FL Presence Requirements 1. Testators signature or acknowledgement must be in the presence of at least 2 witnesses 732.502(1)(b) 2. Attesting witnesses must sign in the presence of the testator 732.502(1)(c) 3. Attesting witnesses must sign in the presence of each other 732.502(1)(c) 4. If testators name is signed by proxy, the proxy signature must be in the testators presence and direction 732.502(1)(a)(2) 5. If testator validly executed his will in another jurisdiction and pursuant to that jurisdictions presence requirements then FL will acknowledge the will as being valid even though the FL presence requirements were not met. 732.502. 6. UPC only requires presence for proxy. Line of Vision Florida, strictest of the two tests o Each party must be capable of seeing the other in the act of signing
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o e.g., testator is capable of seeing the witnesses in the act of signing Conscious presence test o Person through general consciousness of events, comprehends that the other is in the act of signing. (rustling papers, saying Im signing the will now.) Consciousness of the fact of signing is an indispensable requirement. Not enough to know that others are in the room must know they are in the act of signing Simpson v. Williamson p. 70 (Fla. 5th DCA 1992) o Williamsons will increased devises to two former wives o Will signed at end by Williamson (testator) and witnessed by Niven and Bass (on page 5 of will) Bass stated that they were not all together for signing the will in an affidavit. Bass said the testator was not present. o Self-proof (on page 6) signed by Williamson (testator) and by Niven, and Bass, and then Welden notarized and signed as the notary (self-proof would NOT be present if notary served as witnesses but okay because self-proof NOT a requirement) o Notary could be deemed the second witness if it is notarized at the same time. It didnt work here because there were issues with the attorney saying that Weldon would get it notarized in his office. Integration p. 58 o Pages must be present when will executed and be intended to be a part of the will o Dont have to separately attest each page, but pages must be integrated in some way By sense e.g., bottom of first page says to my and top of next page says niece. By physical attachment Fastened securely Holographic Wills p. 55 n.2 Unattested handwritten will. o An unattested (no witnesses) will may be valid in a jurisdiction that recognizes holographs o Majority of states recognize them 27 States o FL - No -- 732.502(2) o Will written entirely (or materially in the testators handwriting) Must be signed by the testator o Spectrum of holograph No Non-UPC 1990 UPC Holographs States that Signed and FL allow material Holographs portions must Signed, be in Testators Dated, and handwriting Totally in Testators Handwriting

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What if the testator wrote the document on his letterhead or his stationary with his name on it...would any typewritten words take it out of the totally in testators handwriting? Would have to be able to show that the testator had no intent that the typewritten words be part of the handwritten document, the letterhead would NOT constitute a signature. Questions p. 72-73 o 7. (TWEN) Dan eating at restaurant o Allergic reaction o I leave all my property to First Baptist X o Dan asks 2 waitresses to send his will to the church. Dan died. Under FL law, did Dan die with a valid will? (a) No, because FL requires testators to publish their wills and Dan did not declare the document to be his will (b) No, because FL does not allow a testator to sign by mark (c) No, because FL does not allow holographic wills (d) Yes, because FL allows holographic will when the testator is in imminent fear of death o Question 7 cont. and q. 8 7. Dan eating at restaurant Allergic reaction I leave all my property to First Baptist Church X Dan asks 2 waitresses to send his will to the beneficiary What if the two waitresses had see Dan sign by mark? Valid will? No. Witnesses also need to sign o How about Q.8 o TWEN Question 2 Tina Testator, a widow was single and childless. She wrote a will leaving her probate assets one-half to her long time friend and neighbor, Sam, and one-half Is the will automatically invalid in Florida because both witnesses were beneficiaries? No. FL does not automatically invalidate a will signed by disinterested witnesses, although this is not recommended for purposes of it being challenged by others. 732.504 o Question 9 p. 73 (and TWEN q. 3) Terrys kitchen table 2 neighbors Terry signs Door bell rings Neighbors sign while she goes to answer the door. This is not going to work in Florida. What if she can hear them signing? Not good enough need line of vision presence unless legislature changes this to conscious presence (in FL - this is allowed if the testator is blind).

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Wills: Testamentary Intent, Testamentary Capacity, and Undue Influence If jest, a contrivance, or another purpose, not testamentary intent o e.g., Professor using will for pedagogical (just showing an example) purposes o If testator is told he is signing a deed or a K then he doesnt have the intent to sign a WILL. Mental Elements who has burden? o 732.501 sound mind Who has the initial burden to establish the formalities of a will in FL? o 733.107(1) Proponent has burden to establish prima facie its formal execution and attestation Proponent is one who wants the will to be valid 733.107 provides that - A self-proving affidavit executed in accordance with s. 732.503 or an oath of an attesting witness executed as required in s. 733.201(2) is admissible and establishes prima facie the formal execution and attestation of the will. Who has the burden to prove lack of testamentary capacity or other grounds for contests o 733.107(1) The contestant has the burden to prove why it shouldnt be probated (e.g., lack of capacity) Statutory Presumption o FL 733.107(1) Proponent has burden to establish formalities (e.g., signature at the end, attested, presence) Contestant then has burden on grounds for opposing (e.g., lack of capacity) When things are deemed to be policy considerations that it shifts the burden to the other side o 90.302 Says only important policy considerations will shift the burden of proof Lack of capacity shifts the burden of proof Testamentary Capacity o Testators ability to understand in a general way: (1) The nature and extent of his property (type of property owned) (2) Natural objects of his bounty (would naturally take from you (testator does not have to know what a person would take in a per sterpies jurisdiction tho also doesnt have to leave them anything though) (3) Practical effect of will as executed (i.e., the disposition he wishes to make of his estate, and the act of making a will) Also needs to know that he is executing a will

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You will see people contest based on testamentory capacity when: The testator was ill/weak during the time the will was signed When the testator leaves his estate to people that seem unusual or unnatural. Excerpt from The Testament pgs. 81 o P. 81 he pulls out and signs a different will o Would the new will be valid in Florida? No holograph o Does he have testamentary capacity? Testamentary Capacity know natural objects o Knowledge of natural objects of his or her bounty o Dont have to leave them anything or treat them equally o Sometimes helps to include a o Recitation Clause (explaining the uneven contributions) Ex: why you are not leaving one of your children something Dont need but helps to explain and get true intent American Red Cross v. Estate of Haynsworth p.86 o 3 wills executed in 1993: He was 94 when he executes these wills o Feb. Will May July Will Most of the estate T declared Charitable devises to 3 charities & incompetent reduced; gifts to large devise (5% in proceeding niece and other of estate) to Blum initiated by family increased (the lawyer who attorney; Niece drafted the will) is guardian

Nov. Will was totally deemed invalid

The attorney Blum in 1993 petitioned to determine Haynsworths competence. T died Dec. 1995 at 97 What is the effect of an adjudication of incompetency? P.89 - Shifts burden of going forward with evidence (of a return to Capacity) to proponent of will (here the niece). Normally, without the adjudication of incompetency of the testator, you would not have to introduce a thing to prove capacity, you would just have to prove formalitites. -this does not apply to the Feb will bc competency was done after What argument can you make on the earlier will -if its close in time can argue that he wasnt doing so well at that time either you will have the burden bc there is no presumption; difference is they are not going to get the burden shifted Lucid Interval o Florida: It is not enough to say that at the moment they executed the will they aware not patently delusional. Must prove, that a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity Even if it is only for a short time
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Insane Delusion (Edwards v. Citizens National Back of Lesburg. o Legal not psychiatric concept o False belief testator adhered to against all evidence or reason o Subject matter of the insane delusion must have no foundation in fact o Only the part of the will that was caused by the insane delusion fails (unless the delusion affects the entire will) Here, striking the part about the lawyer but keeping the rest valid

Edwards v. Citizens National Bank of Leesburg (In re Estate of Edwards) p. 89 o Contestants conceded to him knowing his property and the natural bounty they the main issue was whether he knew the practical effect of will as executed. o The contestants expert witness actually said he did know and therefore he met the 3 PART TEST. o They then claimed that even though he knew all of the above, he was having an INSANE DELUSION. o Trial court had found capacity o Believed that family members were taking his property worried about shoplifting etc. o decedent changed his will 6 days before he died and left it all to his employee o Disinherited family members o RULE: an insane delusion analysis can be wrong; but it just cannot be based on any fact at all o did not matter that his family was not doing what he thought just that he had those feelings towards him Insane Delusion: Has to be a delusion with no factual basis. Believed that family members were taking his property without permission. See some factual basis-not insane delusion. Insane delusion is when have no factual basis for your actions. What is determinative is that those feelings arose from reasoning or a known premise Here they did not exists only in the decedents mind Pangborn v. Union Trust National Bank (In re Estate of Burkhart) p. 92 Oct. 7, 1959 Feb. 1960 July 1962 Dec. 1963 Will executed T had been Rest home Died at 81 (wife had died Declared Aug. 1959) and incompetent Falsely says he is a resident of Ohio

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Critical time of capacity is AT THE TIME THE WILL IS EXECUTED. Since at his wifes funeral he was lucid and that is during the same time he executed the will, the proof that he was not incompetent at the time. The mental elements will be on the contestant in a case where the will is executed and then the testator is SUBSEQUENTLY deemed incompetent. Hansworth Incompetent PRIOR to execution of proposed will the burdened shifts to proponent of will. Pangborn Incompetent SUBSEQUENT to the execution of the will. the burden remains with the contestants.

09/22/2009 Undue Influence Undue Influence P. 96 o Influence destroyed testators free agency and substituted anothers volition for that of the testator It was not that persons desires that is shown on doc FL prove directly: 1. Influence exerted on testator (UNDUE INFLUENCE love can be an influence but it is not considered undue influence. 2. Effect of the influence was to overpower the testators free agency Its okay to influence someone just cannot overcome them 3. The product was a will (or portion thereof) that would not have been executed but-for the influence If you are a contestant of a will you may need to prove undue influence directly Tarsagian v. Watt Kids of previous marriage are challenging new wife who got everything in the will They want to annul the marriage and revoke the will for undue influence The court does not annul the marriage and yet still finds undue influence by the wife However on appeal, the court agrees that the marriage was not the result of fraud, duress, or... but they overturn the trial courts ruling that the will be revoked for undue influence. - Will not valid if undue influence - 732.805 unless the marriage is the product of fraud, duress, etc then the presumption of undue influence cannot be raised because the factor confidential relationship element will always be met. Presumption of Undue Influence o Recall: FL 733.107 contestant has burden of proof on mental elements

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o Contestant can raise a presumption of undue influence by demonstrating that the influencer: (need to prove these 3 things) 1. Influencer is a Substantial Beneficiary (SB) 2. Was in a Confidential Relationship with testator and Will not find btw husband and wife (CR) 3. Actively Procured the will (AP) If contestant shows all three things above, the burden of proof (not just burden of procuring evidence) shifts to the proponent. Therefore, proponent must prove, by a preponderance of the evidence (51%) that the will was valid and not the product of undue influence. Estate of Carpenter p. 92 - CBC has 4 children Mary, Ben, Sam, & Bill - Mother left entire estate to Mary o Mother is on heavy medication and has been drinking - before was going to distribute equally, but now says sons do not love her - Contestants Ben & Bill Substantial Beneficiary o Someone who received a substantial and unnatural devise o Unnatural devise: Significantly more than the person would have received Under intestacy In comparison to others in the same degree of relationship to the testator Or more than was provided for the beneficiary in previous wills o Third-party undue influence A person who procures a will to favor the interest of a third party (spouse or child) may himself be guilty of undue influence even if not technically a substantial beneficiary Ex: if you want to get money but would look suspicious so you have it go to your child or husband can still find undue influence This is tougher to prove however the argument is a valid argument. Allen v. In re Estate of Dutton attorney is generally prohibited from drafting a will for his personal benefit because of the conflict of interest. Also Gift to lawyer or lawyers family. In re Estate of Dutton - Merely naming himself as executor or trustee, and suggesting the hiring of his law firm would not be sufficient to make him a sub beneficiary. However, his absolute discretion to distribute the bulk of the testatrix estate to charities endows him with sufficient collateral benefits to make him a substantial beneficiary of the will. (page 117)

Confidential Relationship
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Encompasses a Standard Fiduciary Relationship o Priest/penitent o Attorney/client o Doctor/Patient (particularly someone dependent on dr. nursing home) o Guardian/ward o Trustee/beneficiary o Accountant or Financial advisor?/client Courts are not as clear but might be able to find Not strictly fiduciary in a broad sense is confidential

What other relationship could be deemed a confidential relationship Carpenter definition Embraces both technical fiduciary relationships and informal relations which exist whenever one person trusts and relies upon another pg 100 Family relationships are included in this broad definition but for family need more than just close relationship o ex: taking mother to live with you Carpenter case. CANNOT BE BTW A HUSBAND AND WIFE o Would have to prove undue influence directly Factors for Active Procurement 1. Beneficiary present at execution 2. Beneficiary present when will discussed 3. Beneficiary recommending attorney 4. Beneficiarys knowledge of contents of will 5. Beneficiary giving attorney instructions 6. Beneficiary securing witnesses 7. Beneficiary storing the will Carpenter factors present: 1, 3, 4, & 5 (Not good) o Court said do not need all factors and are not exclusive would consider other similar factors MENTAL ELEMENTS BURDENS MENTAL CAP/UNDUE INFLUENCE 90.302 rebuttable presumption either (1) shifts burden of producing evidence or (2) shifts burden of proof 90.303 a presumption that is not one needed to implement public policy shifts only of producing evidence (e.g. finding of incompetence if already declared by the court to be incompetent. This is not public policy issue.) 90.304 a presumption (that implements public policy) shifts burden of proof. 733.107(2) preventing undue influence is a public policy issue shifts burden of proof

What is the effect of raising the Presumption of undue influence?

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FL 733.107 Proponent (Mary) has burden to establish duly executed and attested Contestants (Ben and Bill) then have burden on grounds for opposing (e.g., undue influence thus if Ben and Bill show SB, CR, and AP then burden of proof shifts back to Mary, the proponent, to prove by a preponderance of the evidence (51% or more) that the will was not a product of undue influence.)

Does raising the Presumption shift the burden of proof back to the proponent = YES - If contestant shows: o (1) substantial beneficiary, o (2) confidential relationship, and o (3) active procurement Burden of proof shifts to Proponent Requires the proponent to prove by at least Preponderance of evidence (51%) that will was valid (i.e., that testator was not under undue influence) Has to explain why Now if all evidence is equal contestant wins Absent a presumption the burden on mental elements is on contestant if evidence is equal proponent wins o Ethics Note 8 p. 112 Fla. Bar rule 4-1.8 Attorney prohibited from drafting will naming himself as a beneficiary (unless attorney is related to testator) What if attorney gets to choose charity? Presumption of undue influence? Attorney is clearly in confidential relationship Clearly active procurement 9/24/09 Hack v. Janes p. 101 Beneficiaries under 1990 will challenge probate of later (1992) will claiming beneficiary of 1992 will (Lorraine Janes) used undue influence on testator Dorothy Helling The court found no undue influence On appeal presumption found so new trial Court again said no undue influence encen taking into account 733.107(2) presumption of undue influence public policy shirts burden of proof. 733.107(2) presumption of undue influence public policy shifts burden of proof Still, preponderance of evidence standard See Diaz case 112 Chapter 5 Fraud, Duress, Mistake, Spoliation, & Tortious Interference

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Additional Precautions against contest o Supernumerary Witnesses o Physicians o Recording o Recitation clause Explain why you are not leaving everything to the kids Explain why it is not distributed evenly o Successive wills with same testamentary plan If one is deemed product of undue influence or executed while T lacked capacity, earlier will could stand o Intervivos gifts This is much harder challenge bc testator is alive o Non-probate assets Life Insurance Contract, Joint Tenancy, Tenancy By the Entirety (Right of Survivorship), Retirement plans, intervivos trusts Harder challenges No Contest Clause (aka In Terrorem Clauses) provision that reduces beneficiarys devise if he contests will p. 122 - Not allowed in Florida o HYPO: 2 Choices Take devise in Will OR Contest Will trying to get more under Intestacy or previous will o If contest Will and fail, the terms of the no contest clause takes over o FL? 732.517: Penalty clause unenforceable in FL Ex: Will says $100,000 to son Joe but if he contests Will Joe gets $5,000, Intestacy would have gotten $600,000 - Depends on how good your case is: what it does is prevents frivolous contests Note: If devise not high enough, wont work, for this to work the amount has to be big enough for him not to contest

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. *Amended 2011 732.5165 Effect of Fraud, Duress, Mistake, and Undue Influence - Will is void if execution procured by fraud, duress, mistake or undue influence - Not just if induced by fraud, mistake . . .
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- If part of Will is procured that way, that portion of the Will is void What if there is fraud in the inducement but not fraud in the execution? - The will is not voided BUT if a challenge is raised about fraud in the inducement. Typically a remedy can be found in a constructive trust. Types of fraud that occur in testamentary setting p. 113 o Fraud in the Execution Person INTENTIONALLY misrepresents contents of document or switches documents before execution. FRAUD requires intent to deceit. o Fraud in the Inducement Testator INTENTIONALLY misled into forming a testamentary intent that he would not otherwise have formed Ex: Testator is lied to by the frauder, that testators son is dead. Intent to deceive distinguishes fraud from mistake. o See note 1 p. 121 o Forsythe v. Spielberger mistake in inducement not enough under 732.5165. Is fraud similarly limited (i.e., only fraud in the execution not fraud in the inducement would void will)?

What is fraud in the execution? Moneyham v. Hamiliton 168 So. 522 (Fla. 1936) ch. 5 p. 114 o Bedridden Testator asked daughter to get will so he could revoke it o Daughter pretended she couldnt find will o When T died Daughter introduced will for probate o Ct. said no constructive trust because only frustrated intent to revoke not act of revocation

Types of Mistake p. 116 Mistake in the Execution mistaken as to what he is actually executing o Testator thinks he is executing another document (e.g., a power of attorney) but he executes his will o THIS IS COVERED BY 732.5165 Mistake in the Inducement mistaken as to the facts and that mistaken fact caused the creation of the will o Testator mistaken in facts leading to testamentary disposition he would not otherwise have used (e.g., thought son had died but didnt) o THIS IS COVERED BY 732.615
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Scriveners Mistakes Mistake in express document says something the testator doesnt want. Without ambiguity (patent & latent) look to testators intent. o For here dealing with no ambiguity as to what the personal rep has to do (patent or latent) just mistake/error Deal with ambiguity later on o (ch. 8 ambiguities testators intent) Ex: I leave my car to my cousin Teresa, turns out there are 2 cousin Teresas o THIS IS COVERED BY 732.615

Fla. Stat. 732.615* Reformation to correct mistakes WILLS (Most states still dont allow this because the testator is not around to find out what he really wanted.) Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law, whether in expression or inducement. In determining the testator's original intent, the court may consider evidence relevant to the testator's intent even though the evidence contradicts an apparent plain meaning of the will. *Effective July 1, 2011

In Will - Will can be reformed 732.615 for mistake in the inducement and mistake in expression (scriveinors error) - Need clear and convincing evidence - Mistake in the execution (e.g. testator executed the will by mistake thinking he was executing another type of document covered by 7325615 and can void the will. - What if mistake caused Testator to NOT execute a will? Can 732.5165 help? NO MISTAKE CAN VOID A WILL BUT IT WILL NOT CREATE ONE FOR YOU. Fla. Stat. 736.0415 Reformation to correct mistakes TRUSTS Upon application of a settlor (the person who creates the trust) or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's
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original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

Forsythe v. Spielberger p. 117 - 6/10/54 Jacob Spielberger (Settlor) executes trust for himself, wife, then equally among his 4 grandchildren - 8/1/54 Jacob carried to hospital by daughter, Amelia, and he hands her a ring for safekeeping - 8/14/54 Amelia gives ring to her brother Henry - 8/19/54 Settlor amends trust Henry to get and Lewis (because Jacob thought Amelia had switched the diamond for a fake) o Jacob also executes a will leaving the rest of his property to the trust o Mistake in inducement (mistake in the facts) is not sufficient o Ct. said not enough to invalidate the will or trust In re Estate of Mullin p. 119 - Testatrix 1952 Will o 3 real estate to her sister Mary o 4 residue in trust $150/month to sister Mary till her death then principal to 5 individuals named therein Nov. 1, 1957 testatrix calls attorney to hospital tells him sister is dead and to write a codicil eliminating parts of trust for her sister Codicil revokes s 3 & 4 Testatrix dies Nov. 12, 1957 o Attorney made error in making will as decedent wanted o Is mistake by scrivener sufficient to void will? NO, Court noted Forsythe v. Spielberger doesnt void for mistake in inducement (facts) (only mistake in the execution is enough) Ct. reasons similarly that mistake by scrivener doesnt void Fla. Stat. 736.0415 Reformation to correct mistakes- TRUSTS - Upon application of a settler or any interested person the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlors intent if it is proved by clear and convincing evidence that both the accomplishment of the settlors intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement NEW LAW AS OF 7/1/11 - Reformation to correct mistakes- Fla Stat. 732.615 allows a court to reform a will to correct mistakes even without an ambiguity, as long as there is clear and convincing evidence of the testators intent.

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Mistake - In a trust o Document can be reformed 736.0415 whether mistake is in expression (scriveners error) or in inducement (need clear and convincing evidence) In Will o Mistake in the inducement not sufficient to void a will under Fla. Stat. 732.5165 Forsythe v. Spielberger o Mistake by scrivener without ambiguity not sufficient o Mistake in the execution (i.e. when testator executed the will by mistake thinking he was executing another type of document covered by 732.5165 and can void the will

Fla. Stat. 732.5615 Beyond Reformation WILLS New law as of 7/1/11 - 732.5615, voids a will, or a provision of a will, that was PROCURED by mistake. What if mistake caused Testator to not execute a will? Can 732.5165 help? NO, most it can do is VOID a will or part of it THIS MAY BE NO GOOD LAW CHECK POWER POINT>>>>>>> Assuming that the decedents entire will is invalidated, and no prior will is operative, the decedent will die intestate. If only a portion of the will voided, the affected property may go to other devisees or may pass by intestate succession. That outcome depends on the type of devise (specific, demonstrative, general, or residuary) and whether there are alternative takers provided in the will. If a later will is void, any language revoking a prior will is ineffective. By striking part or all of a will, the probate court eliminates the devise that was wrongfully obtained. The courts action does not reinstate a devise that allegedly would have been included but for the wrongdoing. In such cases, since the remedy in the probate proceeding is inadequate, relief should be granted either in the form of a constructive trust, by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of fraud, or by giving the aggrieved party an action at law for damages against the defrauder.

Constructive Trusts for mistake - Generally need a breach of a promise between the transferor and the transferee leading to unjust enrichment and either: (1) confidential relationship; (2) fraud; (3) undue influence; OR (4) contemplation of death o FL Sp. Ct. refused to apply constructive trust to fix mistake to execute (failure to sign)

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o Allen v. Dalk execution ceremony failed because testator didnt sign will when signing many documents NO constructive trusts Lowy v. Roberts Pg. 122 - Spoliation Spoliation: post execution change in the will by an unauthorized third party. A challenge based on spoliation REQUIRES ESTABLISHING: 1. Than an unauthorized change occurred 2. If that challenge is successful, the focus shifts to establishing the terms of the original will. 3. If the original wills terms can be established, the will, as originally written, may be admitted to probate. An atty should take measure to prevent spoliation, including counseling the testator regarding safekeeping of the will, If more than one page, the atto should take steps to prevent pages from being replaced by substitutes inserted at a later date. Lowy v. Roberts pg 122 - Post-execution 3rd party alteration a will o The testator had signed every page (but the 1st 4 were changed bc did not have his signature) - Robert Lowy had a six page will - The 1st 4 pgs were switchd out - Wife supplied a copy of the will with original six pages which showed all 6 were signed by testator. - The one that wife claimd was real left all property & furniture to wife - The one with the change only left the real prop & furniture contained in a specific address to wife - The will left residuary estate to wife (Onelia) and a niece (Carol Roberts) - 5 changed (fn 3 p. 123) - The court found that the copy was sufficient to allege a claim for spoliation which should be tried by a jury to determine which one is in fact the correct will

Kramer v. Freedman, p. 132 - Evelyn Patricia Freedman wants constructive trust imposed on part of her fathers estate - P. 135 (1st ) Evelyn failed contesting probate of will. She didnt meet her burden to show duress or undue influence in Will execution - Fathers Will was probated
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Estate went to estranged wife, Valerie, and Evelyns half-sisters (Valeries two daughters) Roberta & Judith Before fathers death Roberta & Judith promised him in writing to split the estate equally with Evelyn so he did not write a will leaving the other daughter out Here, were unjustly enriched by the amount of not sharing court found that there was a confidential relationship and there was breach of promise So, was constructive trust imposed on the part of the part that should have gone to daughter

Constructive trust: when someone holds as trustees for someone else - Here the sisters were acting as trustees for half-sister

9/29/09
Constructive Trust - Not a real trust is a remedy for a wrong o To prevent unjust enrichment - Equitable remedy - Court construes the circumstances such that the person who was unjustly enriched is seemed to hold the assets as a trustee in trust for the intended transferee - Need to meet the elements for constructive trust Constructive Trusts for fraud - Generally need a breach of a promise between the transferor and the transferee leading to unjust enrichment and either: (1) confidential relationship; - btw transferor and transferee (2) fraud; (3) undue influence; OR (4) contemplation of death - with transferor - Can be imposed for fraud (in execution or in inducement) Probably cant void will under 732.5165 for fraud in the inducement (analogy to Forsythe v. Spielberger see note 1 page 121 but might be able to Claveloux v. Bacotti, p. 135 Tortious Interference - Christine Claveloux (the only daughter of Anna McGloin) sued her cousin Bacotti for tortious interference mother is still alive o Bacotti had aunt redo her will and gave him half and other half to American heart association o McGloin own lawyer would not change so B got a new one - Tortious interference with expectancy cases brought after death o Allowed one case to go forward when the actual interferer had died before testator
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Tortious interference elements P. 129 Schilling v. Herrera citing Claveloux v. Bacotti 1. Existence of an expectancy; (prior will, discussion by testator re intent, etc) 2. Intentional interference with that expectancy through tortious conduct; 3. Causation (proximate cause for P to get less or no share) 4. Damages; AND See Note 1 p. 137 5th element 5. Lack of an adequate remedy at probate You cannot bring a tortious interference case if there is a remedy at probate If adequate relief is available in a probate proceeding then tat remedy must be exhausted before a tortious interference claim may be pursued DeWitt Case. EXCEPTION: If the defs fraud is not discovered until after probate, P is allowed to bring a later action for damages ince relief in probate was impossible. - But must first show that there was no remedy in probate No state other than Maine has allowed this COA to be pursued prior to the testators death. PURPOSE OF THIS TORT To protect the testators former right to dispose of his property freely and without improper interference. Whalen v. Prosser see pg 129 NOT to protect the beneficiaries inchoate rights This is because the fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced, the testator is. When might there be lack of adequate remedy at probate? - P. 127 top reference to DeWitt - Distributions of assets sought cannot be provided by probate court
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o e.g., plaintiff son was promised 2/3 prior to interference and would get only by intestacy so can try to show to get the full amount o e.g., plaintiff not a family member and no prior will available so intestacy doesnt help

Neumann v. Wordock p. 125 - Siblings sued their sister tortious interference - Claimed sister caused parents to execute a durable power of attorney giving the sister control of the parents property and Wills in her favor - When parents died there was no assets in their estates (bc sold) - Here no adequate remedy in probate because specific property promised and intestacy wouldnt work there was nothing to distribute Tartaglia v. Hatten (In re Estate of Hatten) p. 127 - Appeal from Summary judgment so accepting plaintiffs facts as true: - Louise Hatten had 7 brothers and sisters - Louises Will disinherited 2 brothers and a nephew - After Louise died, one of the disinherited brothers went through Louises papers and left with papers in a bag, cardboard boxes, and mental boxes. - 733.207 prevented adequate remedy in probate o if a will is missing there is a common law presumption that the testator destroyed it with intent to revoke it is a rebuttable presumption Fla. Stat. 733.207: Establishment and probate of lost or destroyed will - Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. - The specific content of the will must be proven by the testimony of 2 disinterested witnesses, or if a correct copy is provided, it shall be proved by one disinterested witness Rule: hearsay rule does not bar the testimony of the plaintiffs regarding 1) the fact that the decedent had executed a will and 2) the contents of the will Rule: the dead mans statute does not apply in an action for tortious interference only applies when the personal representative is being sued in his or her representative capacity not when being sued personally Amendment and Revocation Ch 6 Need intent and formalities to revoke

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1) Mental Elements/Intent: Testator must have present intent to revoke, capacity, and be free of influence at time of revocation AND 2) Formalities for revocation Amblitory Will does not transfer until death of the testator Inter Vivos Trust does create a property interest o Revocation (1) Intent (2) Formalities o See Estate of Mizell and Tonnelier v. Tonnelier 732.505 Revocation by Writing (if want to revoke part have to do it this way) A will or codicil, or any part of either, is revoked (1) By a subsequent inconsistent will or codicil but revocation only so far as inconsistency - Implied - has to be signed by 2 witness and signed at the end 502, dont have valid 505 if dont have 502 stuff - the 2nd will revokes the 1st even if expressly not mentioned (2) By a subsequent inconsistent will or codicil or other writing declaring the revocation - Expressly revokes the previous - cleanest/best way to do

Express Revocation by Subsequent Instrument 732.505(2) HYPO: Will #2: This will hereby revokes all previous wills and codicils made by me - If Will #2 valid and has express revocation clause Will #1 is revoked - If Will #2 NOT valid o (procured by fraud, undue influence, T lacked capacity, or formalities not met) No revocation and Will #1 stands bc can only revoke by a VALID instrument 10/01/09 Can Subsequent Instrument do nothing but revoke? YES, if express - This instrument hereby revokes all wills and codicils previously made by me. o It doesnt have to dispose of property or anything except revoke, you can only do if it expressly revokes - /s/ Testator - Witness 1
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Witness 2 732.505 Revocation by Writing needs to be express

Express Revocation of Part of Previous Will o Codicil o This Codicil hereby revokes provision X of my last will and testament dated _______, all other provisions of my will remain in effect Implied Revocation by Subsequent Valid Instrument ch. 6, p. 140 - Can have implied revocation by subsequent instrument if subsequent instrument contains provisions that are inconsistent with previous instrument - FL 732.505(1) HYPO: who gets the will Will #1 (2000) Will #2 (2008) My Picasso print in My Picasso print in my living room to Anne my living room to Beth Rest and residue to Red Cross Rest and residue to Red Cross - Clearly inconsistent -- later in time governs and Beth gets Picasso 732.506 Revocation by Act - A will or codicil is revoked by the testator, or some other person in the testators presence and a the testators direction, by burning, tearing, canceling, defacing obliterating or destroying it with the intent and for the purpose of revocation o ENTIRE thing or nothing (cannot revoke only part) *Subsequent Writing must be valid (intent & formalities) - Be sure act meets precise words of the statute HYPO: testator throws will away and it goes to dump, beneficiary goes to dump and gets will, is this valid for probate - Yes, bc it has not been properly destroyed Estate of Bancker p. 143 - Revocation physical act by proxy, testator told wife to tear up went to other room and flushed down the toilet Will was destroyed but not according to statute, revocation invalid o Need Presence!!! even if testator heard 10/06/09 Jones v. Shifflet (In re Estate of Shifflet) p. 149 - Florence Shifflets Will and codicil was marked out names like below and initialed o Sister Mary M. May and nephew Donald C. Jones and niece Patricia Jones o Brothers-in-law, Leroy J. Shifflet and Woodrow D. Shifflet o FLS. Witnesses Rollos and Helen o NOTE: FL doesnt allow partial revocation by physical act 732.506
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 FL does allow (1) physical act or (2) subsequent instrument revocation If going to have physical act need all or nothing o Here, could also not be valid subsequent writing bc did not sign at the end Dahly v. Dahly - Original will was marked up - 2nd wife argued it had been revoked - Dahlys Will o Named 1st wife and daughter as personal reps But they both had died before testator o Testator had written on parts, tried to add heirs - Is this enough for physical act revocation o NO bc not sufficient for physical act - Could this possibly be revocation by subsequent valid instrument o No, did not follow requirements no sig or witnesses Hypo - Testator mails the following to his named executor (who has custody of testators will) o As soon as you get this note, please tear up my will. /s/ Joe Smith This is not appropriate physical act revocation, would be okay if it was in his presence o What if added Witness 1 and Witness 2 Now not physical act trying to do subsequent instrument there is no present intent they need to witness him revoking now not in the future o I hereby revoke /s/ Joe Smith If signed with witnesses then there is valid subsequent instrument Need all mental elements: capacity, and present intent to either create or revoke o Witness 1 o Witness 2 Estate of Tolin ch. 6, p. 152 - Tolin attempted to reinstate his friend as the residuary beneficiary instead of the Broward Art Guild by tearing up the codicil to the will - After Tolins death it was discovered that the original codicil had not been destroyed, only a high quality exact copy - Ct. said codicil not revoked o Cannot tear up copy of a will or codicil needs to be the actual copy Revocation by Operation of Law 732.507 fla does not revoke by operation of law nor by subsequent marriage, birth, adoption o If divorced, it would only void out the portion going to the divorced spouse.

Operation of Law Hypo

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2000 Ts Will 40%To W for life, then rest to my sons Tom and Tim nothing To sam

2006 T&W get divorced

2008 T dies survived by sons Tom, Tim, and Sam

2006: does the former wife get to keep her share - Yes, it possible that the former 2009: the will stands, if the will had been revoked by operation of law - Then would devise to all 3 sons - All you do is cross out the part of the ex-spouse - Any provision in favor of former spouse becomes void - Treat as if former spouse died on date of divorce Q: is Ts will admitted to probate or is it revoked? - Will is not revoked but any provision in favor of former spouse becomes void - Note that will or divorce decree can expressly override

Revival? Ch. 6, p. 141 part IV Will #1 My ABC stock to X rest and residue

Will #2 The Will hereby revokes all previous Wills and Codicils previously made by me I leave my ABC stock To X and Y and the Rest and Residue (Intending to revive Will #1 By crossing out the above)

Is will #1 Revived States have 3 different views on revival 1. Will #1 automatically becomes operative - will is ambulatory not fixed, alterable or revocable 3. Will #1 can be revived but there must be evidence that T intended to revive Will #1 - a will cant dispose of property till Ts death but upon proper execution it does revoke prior will when executed 3. Will #1 cannot be revived without new execution - THIS IS WHAT FL FOLLOWS
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In group 2 and 3 states what can a will do when executed - Cannot dispose of property - But can revoke an earlier will So, how dead is that earlier will - No matter how much intent you have the 1st one is not valid 732.508(1) Revival by execution - the revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will (2) the revocation of a codicil to a will does not revoke the will, and in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provision of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been changed What can you do in FL to bring the terms of Will #1 back? Ch. 6, p. 141 - 732.511 Re-execution of the will (formalities) - 732.5105 Republication of wills by codicil o In real life just make a new will What if revoke a Codicil? Ch. 6, p. 141 Will (2000) Codicil (2002) 1-15 The codicil hereby revokes 5 of 5 devise my my last Will and Testament dated AT&T stock to 2000 and replaces the devise therein my son, John with the following: My AT&T stock to my daughter Mary FL 732.509 revocation of a will revokes all codicils to that will Does revocation of Codicil revoke the Will? = NO - All jurisdictions hold that the revocation of a codicil does not revoke the will Does revocation of Codicil reinstate provisions of the Will affected by Codicil = YES - 732.508(2) *FL presumes revocation of codicil and reinstates will 10/8/09 2 ways in which Fl revokes a will 1. By subsequent written instrument 2. By act

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.507 treats ex-wife as if she died on the day of the divorce Chapter 7 DRR Incorporation by Reference p. 155 732.512(1) o Writing/document in existence at time o Language in will manifests intent to incorporate o Language describes the writing sufficiently 732.512(2): Acts of Independent Significance 155 o Will may dispose of property by reference to: o Acts or events that have significance apart from the will o Ex: Rest and residue of my estate to my children who survive me o Ex: Car that I own at my death to my nephew Ned What if testator got different car Ned will get the new car Bc has independent significance nothing to do with changing the will o Ex: $1000 to each person who shall be in my household employ at the time of my death Acts of independence significance 732.512(2) last sentence: The execution or revocation of a will or trust by another person is such an event HYPO o Testatrixs Will Residue to my son, but if he predeceases me, to the residuary beneficiaries of his last will and testament Sons Will Residue to my step-daughter, Natalie

What if at the time Testator executed her will the son had not written a will - Then can use this bc the act of son writing a will is of independent significance Q: Once makes will - Natalie is getting all of Sons will and that of testatrix Q: Would have Natalie gotten it if he said to my son and he died intestate - NO, 732.515: Separate Writing for Tangible Personal Property - Only tangible personal property (not trade or business property or property specifically devised) NOT real property o not stock bc intangible, cannot have truck that is for business but can reg truck
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o can you leave your car = YES, unless specifically devised in the will o what about antiques, jewelry = YES Formalities for Letter - Signed by testator o Should be signed before and after will execution - Describe items and devisees with reasonable certainty o Should keep letter with will but not required - Need a properly executed will and this becomes part of the properly executed will - Reference to unattested writing for tangible personal property Dependent Relative Revocation (DRR) Doctrine of Second Best {732.508} Is a doctrine invoked to prevent intestacy in situations involving an invalid will - It requires (the revoked will needs to be VALIDLY revoked) o 1) a finding that the testator preferred a revoked will to the intestacy that results from the current invalid will AND o 2) the wills are similar to each other 1. Anti-revival Cases o Will #2 was validly executed revoking Will #1. T changes his mind and destroys Will #2 mistakenly thinking that he has REVIVED Will #1 (but anti-revival jurisdiction FL Stat. 732.508(1)) Can we say revocation of Will #2 was conditional of revival of Will 1? Would want to argue was conditional revocation 2. Because of New Will Cases T has Will #1 then attempts to execute Will #2 but something goes wrong (either no capacity or formalities) with Will #2. T thinks he has new will so destroys Will #1 - Can we say revocation of Will #1 was conditional on validity of Will #2 - would need to ask whether testator would want 2nd best then would apply DRR, and treat the revocation as conditional - if 2nd best is not what testator wanted then would apply intestacy Example 1 (ch. 7, p. 159) Will #1 To Red Cross Broward Hosp

Will #2 One slight change in charitable devise

Q: Assume will #2 was invalid - Was will #1 revoked by valid subsequent instrument - No, there would not be DRR bc no valid revocation Example 1 (ch. 7, p. 159) with different facts Will #1 Will #2 To Red Cross To my children
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Broward Hosp Will #1was revoked by physical act (tore up) so only apply DRR if closer to what the testator wanted

DRR (Dependent Relative Revocation) Analysis for Because of New Will Case ex. 3 p. 160 o 2. Because of Will Cases Will #2 never valid. Will 1 physically revoked

10/13/09
DRR (dependent relative revocation) 1. Anti-revival Cases Will #2 was validly executed revoking Will #1. T changes his mind and destroys Will #2 mistakenly thinking that he has REVIVED Will #1 (but anti-revival jurisdiction FL Stat. 732.508(1)) 1. 1st best choice is will #1 Can we say revocation of Will #2 was conditional of revival of Will 1? Look at 3 things: 1. First best choice 2. Weigh other options 1. Conditional revocation of will #2 or intestacy 3. Whichever one is closer to first best Doing the DRR analysis doesnt automatically lead to applying DRR and deeming revocation to have been conditional Only apply DRR if can show based on testamentary scheme that testator would have preferred second best will to intestacy. 2. Because of New Will Cases T has Will #1 then attempts to executed Will #2 but something goes wrong (either no capacity or formalities) with Will #2. T thinks he has new will so destroys Will #1 Can we say revocation of Will #1 was conditional on validity of Will #2

DRR (Dependent Relative Revocation) Analysis for anti-revival case ex. 5 p. 160 HYPO 1. Anti-revival Cases Will #2 was valid but was revoked Will #1 Will #2 80% to 70% to
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granddaughter 20% to Son

granddaughter 30% to Son

Q: Subsequently Will #2 is Physically revoked with intent to Revive Will #1, is it brought back? - Will #1 will not be brought back bc FL is anti revival Q: Does our guy automatically die intestate? Analysis: 1. Determine 1st best 2. Compare will 1 (best terms) to the options: intestacy and will 2 3. If will 2 is closer to 1st best then apply DRR a. If A DRR analysis doesnt automatically lead to applying DRR and deeming a revocation to have been conditional Only APPLY DRR if can show based on testamentary scheme that testator would have preferred second best will to intestacy

Analysis:/HYPO (1) Determine first best Will #1 (80/20) cant 732.508 100% to son 70/30 Intestacy? Will #2 (2) Compare 1st best terms (Will #1) to Will 2 and intestacy (3) If Will #2 is closer to first Best APPLY DRR Will #2 is deemed not Revoked Apply DRR Change Facts - Will 1 80 to granddaughter 20 to son in will 1 - Will 2- 70 to granddaughter 30 son Granddaughter would now want DRR analysis - Under this she wanted to die intestacy HYPO Will #1 $2milTo Red Cross $2milBroward Hosp Will #2 One slight charity change

Q: T thought Will #2 was valid so T Physically revoked Will # 1 Caveat: If Will #2 only uncompleted plan STOP No first best so cant do DRR. If Will #2 completed Plan but ineffective attempt, try DRR
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o Analysis: (1) Determine first best Will #1 cant probate Distant Relatives Similar Charities Intestacy? Will #2 st (2) Compare 1 best terms (Will #2) to Will 1 and intestacy (3) If Will #2 is closer to first Best APPLY DRR Will #1 is deemed not Revoked Dont apply DRR Stewart v. Johnson p. 161 - Because of New Will Cases Will #2 never valid; Will 1 physically revoked - Bc when cannot find will or find destroyed presumption is that testator destroyed Will #1 To foster daughter & wife Will #2 Foster daughter & wife (Never valid)

T thought Will #2 was Valid & Will #1 not found Caveat: If Will #2 only uncompleted plan STOP No first best so cant so DRR. If Will #2 completed Choices are - Intestacy Or - Will 1 Analysis: (1) Determine first best Will #2 cant probate Wife foster daughter & wife Intestacy? Will #2 st (2) Compare 1 best terms (Will #2) to Will 1 and intestacy (3) If Will #2 is closer to first Best APPLY DRR Will #1 is deemed not Revoked Dont apply DRR Lost or Destroyed Wills p. 165 Presumptions - If Will contestants prove T had custody of the Will and the Will found physically mutilated, presume T intended to revoke - If Will contestants prove T had custody of the Will, and the Will missing, presume T destroyed it with intent to revoke Upson v. Estate of Carville Ch. 7, p. 167 - T executed will in 1965 that devised her estate to her grandchildren
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Will could not be found when she died Ts daughter, Dianna Upson, opposed probate, so shed be named sole intestate heir Evidence showed the T was meticulous in her financial affairs and that she kept her will in a metal box in her office sewing room. The metal box was not found after her death Court noted presumption (if cant find will, presume T revoked) But agreed with trial court that here sufficient facts to overcome the presumption (entire metal box missing and daughter lived in vicinity)

Compare -- Estate of Baird, p. 167 - Ts Will not found in his box of important papers - Rest of papers still in the metal box - Ct. applied presumption (if cant find will, presume T revoked) - Here Ct. found there werent sufficient facts to overcome presumption - (e.g.) person with adverse interest who would benefit if will revoke lived very far Here: since the metal box was still there not enough to overcome presumption - Need to determine whether person had access to box or was in with someone who did have access FL -- Estate of Baird - In FL once contestants prove T had custody of the missing will, proponent must come forward with evidence that T did not revoke o Once the proponent introduces that evidence then the presumption vanishes Baird Court explained: - Presumption requires a finding of revocation, unless the proponent of the missing will comes forward with evidence showing Will had not been revoked. - If this occurs, the presumption, vanishes, although the facts which give rise to it would still permit, though not require, the court to conclude that the will had been revoked - ONLY SHIFTS THE BURDEN OF GOING FORWARD Ex: undue influence shifts the burden of proof (if can show all 3 then contestant wins shifting the burden) - Lack of capacity the presumption is that he was incapacitated at time only shifts the burden of going forward Proving Contents of lost or destroyed wills - If will is lost and presumption of revocation is overcome, the will can be probated as long as there is satisfactory proof of its contents. - 733.207 still need a disinterested witness if have copy if dont have copy need 2 disinterested witnesses

10/20/09
Chapter 8 Ambiguity & Chapter 9 Devises, Abatement, Ademption, Accession, Exoneration, Taxes 732.615- NEW LAW
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Allows a court to reform to correct mistakes Upon application of any interested person, the court may reform the terms of a will, even if unambiguous, to conform the terms to the testators intent if it is proved by CLEAR AND CONVICNING EVIDENCE that both the accomplishment of the testators intent and the terms of the will were affected by a mistake of fact or law, where in expression of inducement... Reforming a document reformation involves adding language or changing the language to implement intent Vs. Construing Ambiguous Language is interpretation of language in the instrument. Ambiguity will not deal with 732.615. (PERPONDERANCE OF EVIDENCE)

Mistake in the Execution - Testator thinks he is executing another document (e.g., a power of attorney) but executes his will - Covered by 732.5165 and can void the will

Mistake in the Inducement - Testator mistaken in facts leading to a testamentary disposition he would not otherwise have used (e.g., thought son had joined a commune but didnt) o Where you are wrong about the facts that led to creating the devise or the will - Not sufficient to void a will under Fla. Stat 732.5161 Forsythe v. Spielberger Scriveners Mistakes (mistakes in the document, not in the inducement) - No ambiguity (patent or latent) just mistake/error) - Cannot void Ambiguity Latent ambiguity - A latent abiguity arises when applying the words of a will to the subject matter of a devise or to a devisee renders the will ambiguous. Ex: Testator devises to a corporation which changed names...see pg 186 - Not ascertainable from reading will (e.g., to cousin Tom Smith and testator had two cousins named Tom Smith) - Not sure in Fl, seems like you can bring in extrinsic evidence one case says so but not a Fl supreme court case - In cases dealing with construction of a will because of latent ambiguity:

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The intention of the testator is the polestar of any will construction proceeding (say this on test) pg 188 o The court must look to 4 corners of the will 1st then go to testators intent Patent ambiguity - Obvious from face of will (e.g., refers to same devise differently in will) Determine testators intent - Extrinsic evidence allowed in when latent ambiguity - Intent determined by four corners of instrument if patent ambiguity see pg 189 Court said that even if you are within four corners of the doc, the latter provision will usually prevail as being the last expression of intention of the testatrix where the provisions refer to the same subject matter. - Some courts (Fla. 3d DCA) seem to allow extrinsic evidence even if patent ambiguity What if court says no ambiguity? New law says can reform but look at ques for professor to see how she answered. - Cant bring in extrinsic evidence - Ct. trusts Fla. Stat 736.0415 court can reform trust even if unambiguous if it is proved by clear and convincing evidence that both the accomplishment of the settlors intent and the terms of the trust were affected by a mistake of fact or law o New law Can also reform a mistake in a Will What does it mean to say that there are acts of independent significance? - 732.512: things can happen to property, but if there was independent significance o Ex: trading the car, in will said nephew gets my car still gets the new car bc getting new car was independent significance

Problems due to Time Gap Before Will Execution Will Executed Between Will & Death Testator Dies

After Death

HYPO: what if there is a painting given to someone but at time of death painting is gone? - Look below to answers 4 Major Classification Schemes 1. Specific Devise devise of a particular item of property (e.g., my boat) or particular type of property (e.g., my ABC stocks).

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2. Demonstrative Devise (combination of general and specific devise) fixed amount payable from a particular fund or from the proceeds of a sale of an item (e.g., A gets $5,000 from the sale of my IBM stock; B gets $10,000 from my money market account at Citibank) amount of money from a particular source - if any is left over is classified as a general devise 733.805 733.805(2) bifurcates a demostrative devise treating it the same as a specific devise to the extent it is paid for a specific SOURCE and treating it as general devise to the extent it is paid from general assets. Thus Fla Stat 733.805(2) may wholly or partially transform a demonstrative devise into a general devise for purposes of abatement. See pg 201 Pg 199 There are two essential components of a demonstrative legacy: 1. It must be an unconditional gift in the nature of a general legacy AND 2. It must indicate the fund out of which the legacy is to be satisfied. 3. General Devise devise of an amount without regard to a source (aka Pecuniary) (can be fixed $ amount (e.g., $10,000 to A) or amount from a formula (e.g., of my adjusted gross estate) a. is not particular item and not from a particular fund 4. Residuary Devise devise of the assets of the estate which remain after the provision for any of the other types of devises a. e.g., the rest and residue of my estate to A or to my children or to X charity or b. Rest and residue of estate could pour over into an existing intervivos trust c. If do not have this clause and there is left over money it goes to intestacy EX of pour over See page 775 Article FOURTH: All the residue of my estate, wherever situated, including lapsed devises, but expressly excluding any property over which I may have power of appointment at my death, I give to the then acting trustee under the trust agreement executed to me on _______, 20___, before the execution of this will, with NORETHERN TRUST [] of _______, _______, as trustee () HYPO: Pour over into an intervivos trust: Will: ring to A, Car to B, rest and residue of my estate to pour over into my intervivos trust What is the property of that trust - Property: is anything already in the trust plus the assets obtained from probate - NOTE: assets that form the residue dont avoid probate this is done to capture any possible leftover stuff - Reason to do this is that will is public but the trust is private so might not want everyone to know what you are doing 732.513: Devises to Trustee - Fla legislature has specifically sanctioned the ability to pour over assets into a trust o Can revise a trust without having to re-execute the will

10/22/09

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733.805: - will can provide the order in which devises abate In re Estate of Potter - If husband predeceased, House to daughter - decedent made will that gave specific devise to her daughter the house - her son got a general devise - gets money which is equal to the amount of the house from the trust o There was not enough money in the trust to pay the son - If daughter gets house, equivalent $ to son before spilt trust equally - Son had general devise - Which abates first the general (sons share)

ABATEMENT - If not enough in estate to pay all creditors, expenses and all devises then some devises abate - Some states (not Fl nor UPC) still distinguish btw real and personal property for purposes of abatement (with personal abating before land) - Testator can provide for an alternate scheme if doesnt like scheme

733.805 (Does not distinguish from real or personal property BUT does distinguish from type of devise i.e. general, specific, demonstrative, etc.) If Testator doesnt provide for an alternate scheme and not enough property to cover debts and devises abate in the following order: 1) Property passing by intestacy 2) Residuary 3) Property not specifically or demonstratively devised (general) 4) Demonstrative devises 5) Specific devises HYPO: Testators Will - My Picasso print to my good friend Tom, My IBM shares to good friend Joe, Rest and Residue of my estate to my beloved children What if testator gets wiped out - but still has IBM and Picasso - If there is no provision in the will the residuary gets wiped out first Q: What if 100K from the sale of by IBM stock how do you characterize the devise - It is demonstrative; so that is going to abate before the specific devise to tom o Demonstrative goes before specific
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Q: what if 10K stock to anglea - This is general devise, would go first - Last one standing is specific Priority of Claims p.189 - If costs and claims exceed assets, some creditors wont be paid in full - If assets in estate are insufficient to pay costs and claims 733.707: Order of Payment 1) First pay (Class #1) all administrative expenses (including fees for personal representative and counsel) 2) Then pay (Class #2) funeral (up to $6,000) 3) Then pay (Class #3) federal taxes and Medicaid 4) Then pay (Class #4) Medical expenses of decedent during his last 60 days 5) Then pay (Class #5) Family allowance capped at $18,000 6) Then pay (Class #6) Child support arrearages 7) Then pay (Class #7) Debts incurred in decedents business after death 8) Then pay (Class #8) All other claims

Ademption of Specific Devise by Extinction (ABE) what happens if there is specific devise and the property no longer exists A specific devise is adeemed (ineffective) if the testator no longer owns the specific property at death. o Only a specific devise o E.g T had the property when he executed the will but not at death. The testator can deal with this type of scenario within his will and ademptioon by extinction will not be an issue.

Ademption by Satisfaction (ABS) (diff from ABE) - T gave devisee a gift during lifetime in satisfaction of a devise Ademption by Extinction FL FL uses intent theory 1. Look to the intent of the testator (courts use intent theory) 2. FL statutes also applicable: a. 732.605(1)(c) ABE but only deals with securities, if securities merge, get sold, etc. b. 732.606 Special situations where specific devise not adeemed

EXAM NOTE: - I THINK THIS THING IS WRONG ISSUE PROPERTY IS NO LONGER IN EXISTENT OR OWNED BY TESTATOR AT HIS DEATH. WHEN YOU HAVE A SPECIFIC DEVISE RULE WHEN DOING THE ANALYSIS GO TO THE STATUTE FIRST!
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If the fact patter follows the statute then use statute and devisee gets what the statute says and analysis is done (no need to do intent theory). BUT if the facts do not fall within the statute then you can bring in evidence of what the testator intended to determine what the devisee gets. FIND IDENTITY THEORY MAJORITY APPROACH NOT FOLLOWED BY FLA Significance of Reason Property is Not in Estate - Fla. Stat. 732.606 and 732.605 provide rules concerning ademption of specific devises - If one of their provisions applies, the devisee will receive the item or amount provided by statute - If none of their provisions apply, determining whether the item was adeemed require examination of the Testators intent See Hall v. Jones (In re Estate of Jones) 732.606 (1) if specifically devised property not in the estate because it was sold by guardian of testator, the devisee is entitled to $ amount equal to sale price (or award) - If, however, testator is adjudicated no longer incapacitated and survives 1 year, specific devisee not entitled Why the 1 year rule? - Maybe legislature determined that if testator no longer incapacitate for 1 year he could have revised his will (2) (applies only when there is a sale by the testator) Provides that specific devisee entitled to any fund remaining that are unpaid proceeds of a sale, condemnation, insurance, or foreclosure of property that was specifically devised - it gives the devisee the right to any remaining specifically devised property - it also gives the devisee the right to (a) any unpaid purchase price and security interest if the testator sold the property before death (b) any unpaid part of the condemnation award (c) any unpaid insurance proceeds AND (d) property owned bc the testator foreclosed on property covered by a specifically devised obligation or took property in lieu of foreclosure Hall v. Jones (Estate of Jones) p. 194 THIS CASE GAVE US THE INTENT THEORY - Testator (Mr. Jones) had will with 11 specific devises and residuary clause. Relevant devise was to niece Karen Hall - I give equitable interest and/or income from former home in VA o Had already sold the house at the time he made the will 1981 T sold his VA home for a Note from buyer of $42,000 Feb. 1982 T executed his will July 1982 Note prepaid In full for $42,054
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Dec. 1982 T died find $40,000 Money market

payable in 120 mo. Installments (10 years)

& $2,054 reg. account

Court noted that the statutes didnt apply and ruled evidence of intent relevant - Problem is that debtor paid off 10 year note in full Court said will follow the minority jurisdiction - If the statute does not apply, look to the intent of testator - Since he did not spend the money shows might have wanted her to have it, also that testator did not plan that it would be paid in full

Ott v Ott p. 207 o Richard Otts Will All my interest in Casa de Tesoro, Inc. (FL corp.) to my children (from previous marriage) Rest and residue to current wife o Before his death Richard Ott had sold his shares of stock in the company o As payment for the stock Ott received a mortgage and a promissory note from the buyer o Was the devise to the children adeemed or does 732.606(2) apply? applies to all testators, not just guardians. 732.606(2)(a) A specific devisee has the right to the remaining specifically devised property and any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest. o How would you draft to avoid an exoneration problem?

Chapter 9 Accessions, Accertions, Exoneration & Chapter 10 Pretermitted

Accessions Before Will Execution (Dividends $10,000) Between Will & After Death Death Will executed Testator dies Ts Will My 100 shares If can trace the dividends ($10,000) to an account, does of IBM stock to Albert get the $10,000 or does it go to residuary devisee? Dividends distributed before death are not part of devise. Albert Rest and 732.605(2)
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Residue to American Red Cross Accessions FL 732.605(2) o Distinction between Post-execution /pre-death accessions (does not go to devisee) & those occurring after death (devisee gets it)

Stock Splits Before Will Execution Between Will & After Death Death Will executed Testator dies Ts Will My 100 shares IBMs actions convert 1 share to 2. (1 share valued at $50 of IBM stock to converts to 2 shares each valued at $25.) Is Albert entitled Albert Rest and to 200 shares or only 100? Residue to American Red FL 732.605(1)(b) for specific devisees He gets 200 shares Cross Importance of Classification of Devises o Why is classification important for ademption by extinction? Only specific devises are subject to ademption by extinction o Why is classification important for abatement? Absent language in the will to the contrary, devises abate from bottom up (residuary, general, demonstrative, then specific) o Why is classification for accession important? Devisee gets stock splits or other actions initiated by the company if specific Devisee EXAM NOTE: My 100 shares, My share = court will see the My as specific property of testator and will find it is a specific devise. BUT if no MY not specific Exoneration (Encumbered Property) o Common law if T devised encumbered property, the specific devisee got it free and clear (i.e., personal representative would use assets of the estate to pay off the mortgage or lien reducing residuary)
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o FL? o 733.803 o Statute reverses the common law Exoneration drafting? o I give to my daughter, Doris, all my interests in my vacation house in Naples, FL subject to any mortgage indebtedness on the property OR free of any mortgage indebtedness which I direct shall be paid from my residuary? Exoneration default statute o In FL what result if devise of the vacation house didnt mention the mortgage indebtedness one way or the other? o Will says only: I leave my vacation house in Naples, FL to Doris. o 733.803 o Doris takes house subject to the mortgage indebtedness o Same issues arise with cars, boats, or other encumbered property o Now that we have reformation MAY BE ABLE TO ARGUE that the will should be reformed.

What if the devised property is upside down? Depending upon the words of the will (i.e. either free and clear or subject to the mortgagee) If free and clear then the devisee gets the house without paying anything If subject to it would be the choice of the devisee to either take property as is or decide to not to take property they dont have to accept the property.

PRETERMITTED CHILDREN If child is born after execution then the testator probably would have wanted to leave something to the child. Florida Statutes created to try to further testators intent therefore FL will give them what would the child have gotten intestacy. FL Only for a child BORN AFTER EXECUTION OF WILL. Challenge to a Will when the T leaves out a child (intentionally) Lack of Mental Capacity. In some states, even if child born before will they fall under pretermitted statute. Hs Will H & Wife #2 marry Will executed $80,000 to my son Bob rest and residue to my wife Twins Born then T dies never revised will
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Section 733.805 If T doesnt provide for an alternate scheme

H dies with assets of $300,000 devises abate: survived by W, twins, and brother Property passing by intestacy Will is VALID Residuary 732.302 Distribute pretermitted Property not specifically or then go back to will demonstratively devised Pay $120,000 to twins Property specifically or Pay the general devise $50,000 demonstratively devised Residuary to wife - $300,000 - $170,000 = $130,000 Woodward v. Smith pg 215 T dies leaves residuary to Brain (P) and Jay (D) and three others. Codicil leaves Jay and his wife specific devise of Ts interest in 3 operating sugar cane farms. Codicil did not address the outstanding loan. RULE: The specific devisee of any encumbered property shall be entitled to have the encumbrance on devised property paid at the expense on the residue of the estate ONLY WHEN THE WILL SHOWS INTENT and a GENERAL DIRECTION in the will to pay debts does not show that intent. Apportionment of Taxes SHE DID NOT GO OVER THIS AND BELOW CASE McClaran v. SunTrust Bank, SW FL (In re Estate of McClaran) (2002)

Recitation Clause will explain ambiguities of why leaving someone out - And unequal distribution Pretermitted Statues - Deal with unintentional disinheritance of someone 732.302: Pretermitted Children (BORN OR ADOPTED IN TIMEFRAME 2 EVEN IF BORN IN TIMEFRAME 1 AND ADOPTED IN TIMEFRAME 2 HE IS PRETERMITTED) When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testators property equivalent to a childs party by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless: (1) It appears from the will that the omission was intentional (something in will saying OR shows something in will that testator intended to omit) OR (2) The testator had one or more children when the will was executed and devised substantially all of the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will NOTE FOR EXAM: What is substantially all? We dont know yet, there will be an argument either way. Pretermitted Child
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Will Executed Child Born Testator dies before fixing Will

Pretermitted Child Hypo Before Will Execution H&W marry Between Will & death H executes Will $50,000 to Bob Residue to W After Death Twins Born!!! H/Testator Dies never having revised his Will

Q: Is this will valid = YES - Paragraph 1 applies - Its paragraph 2 at issue here = he needs to have children before the will was executed to be pretermitted FL- only governs if child born after the will is executed and before death. H & W marry- H executes Will $80K to Bob residue to W- Twins born- H/ testator dies never having revised the will. Q: H's probate estate worth $300K- Is the will valid? YES- not valid subsequent execution or physical act - 732.302- Twins are pre-termitted- exceptions dont block. - How much do the twins get? 732.302o Share of estate- to what child would have received under intestacy- 732.102, 103. Q: Assume Hs estate of $300K. H survived by W, Bob and the twins. What WOULD the twins have received under intestacy? W? - Wife Under intestacy would have gotten half of $300,000 = 150K (if intestacy) - Each child is descendenat so if intestacy would split balance of $150,00 three ways - Each get 50K 732.103(1) - What does the wife get o Distribute pretermitted then go back to the will 733.805 o Gets 120K - What does Bob get o 80K need to pay the general devise then the wife gets the left over $120k - Order of the process: o Find out what would have happened under intestacy (732.102), then go to abatement statute (733.805) to see who loses out, then distribute accordingly What if H & W have child Ann before will execution (ALWAYS LOOK FOR TIMEFRAME 2) H executes will- half to W; half to Ann o Hs estate worth $300,000 Ben is born
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H/Testator dies never having revised his will Is Ben pretermitted? 732.302 - YES o Is will valid? Yes o How much does Ben get? NOTHING Why? Because Ann is the child of both T and Wife so intestacy statute says Wife gets all estate if no children are from a previous marriage. Therefore, intestacy does not give the children anything. So we must then go back and distribute pursuant to will and W & A get half, Ben gets nothing. This is because of the change in the intestacy statute regarding wife.

BAD ATTORNEYING CASE: Estate of Azcunce May 1983 August 1983 Will 1st Codicil

March 1984 Birth of Patricia

June 86 2nd Codicil

Dec. 86 Ts death at age 38

Will beneficiaries - Spouse and his then-born children Leslie, Natalie, and Gabriel - the will contained no provision for after-born children - In light of the codicils, when is the Will deemed executed? In FL the will is deemed republished as of the date of the codicil 732.5105 - Patricia was born in time frame #1 (before will deemed executed here republication) - And in Florida only children born in time frame #2 are pretermitted Once you do a codicil it republishes the will as the date of the codicil (like executing a new will)- 732.5105 Exam Note: ALWAYS LOOK AT TIMEFRAME 2 (between execution of will and death) IN FACT PATTERN TO DETERMINE WHAT IS GOING ON.

11/3/09 Pretermitted child - 302 allows the child to get what they would have gotten at intestacy - Does not void the will, but distribute through intestacy first Before Between
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Will Execution Will executed

Will & Death testator gets Married

After Death testator dies

HYPO: late in life 2nd marriage, 2nd spouse had substantial assets. T leaves his will unchanged assuming all of Ts estate will pass under the will to his children from the prior marriage. How much is new spouse getting? - 732.302 (pretermitted spouse statute): new spouse is pretermitted: she gets of the estate 302(3) - If T executed a new will she would not be pretermitted - Can also use a class designation (ex. To my children, instead of naming them)

Pretermitted Spouse - When testator marries after executing a will (time frame 2) - 732.301 allows the surviving spouse to claim an intestate share of decedents probate property (as a pretermitted spouse) unless one of these exceptions applies: (1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement; (2) the spouse is provided for in the will or a) needs to be executed before marriage AND b) made such provisions in contemplation of marriage to that named person (3) the will discloses an intention not to make provision for the spouse Exception 2: Provided for in the will - 732.301(2) exception blocks pretermitted spouse when: o Spouse (married after will executed) provided for in the will - Note: statute doesnt say how much BUT THERE IS A TRICK Pg 224 Case below - FL case Estate of Ganier ct. held that a person named in the will is not blocked i.e. the spouse has not been provided for, unless the testator both 1) Provided for a person named in the will executed before marriage and 2) Made such provision in contemplation of marriage to that named person - Where a devise to an individual who later becomes a spouse, burden on the spouse to show the devise NOT made in contemplation of marriage HYPO: couple that has lived together for many years. They leave each other a significant amount of property. The wills are valid. They didnt believe they needed to get married. Testator gets ill, and they decide to get married after all. No children. Testator dies.

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Is the spouse getting everything? OR is she getting the amount in the will burden on wife to prove here would get everything in the will bc pretermitted

Exception 3: Will discloses intent to not provide - 732.301(3) exception blocks pretermitted spouse when: - Will discloses an intent not to make provision for (future) spouse - WORDS HAVE TO BE IN WILL: ex: o I deliberately make no provision for any future husband I may have because I want to leave my property to my children. o I am contemplating marriage to Wanda but I am not providing for her in this will because she has been amply provided for with non-probate assets (or because she is independently wealthy) Under the above examples she may still be able to take under the ELECTIVE SHARE staute. Recourse of future spouse blocked by 731.301(2) or (3) - A future spouse not deemed pretermitted because of exceptions (2) or (3) cant get equivalent of intestate share BUT - May make a claim for a spousal elective share (30% of elective estate) o Only if blocked by the other 2 methods Divorce and Remarriage - 732.507(2) if testator divorces, the provisions in favor of former spouse are void o .507: says when divorced the spouse is treated as dead (unless otherwise stated in divorce judgment or will) Fredericks v. Shrines Hospitals for Crippled Children - Facts: decedent had will that said all to his wife, but if she dies 1st then to hospital o Decedent and wife got divorce o Decedent had son who was sole heir and claims that he should get money bc will is void since the divorce - Issue: Does the divorce invalidate the will? - Holding: no, hospital gets the money When Ex-Spouses Remarry Baurer v. Reese (In re Estate of Baurer) H&W H executes Feb. 1957 Oct. 1957 H dies marry Will H & W divorce H&W July 1965 Sept. 1956 remarry 1962 House to W Remainder to relatives Wife is pretermitted - Bc when she was divorced it voided her portion of the will; only look at remarriage so she gets all of the property o Court said was not provided for in the will - What is the other argument the intent of the testator
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o Is a weak argument bc the will demonstrates the intent that she only get the house Negative Disinheritance - If Testator wants to disinherit someone, must leave his estate (probate assets) to someone - If there is partial intestacy, the disinherited heir gets his intestate share Hypo - Ts Will: Because my only son, S, has neglected me in my declining years, I leave him nothing at all. Instead, I leaving everything I have to my best friend, F. Q: What happens if F dies before T and T fails to revise his will? - No alternate taker - If the son is the only relative he is getting it; if you really want to block son need to have back up plan of charity 11/5/09 Lapse Issue Before Will Execution 2000 Ts Will $50,000 to my best friend Bud

Between Will & Death 2005 Bud died

After Death 2008 Testator dies Never having revised his will

Residue to Red Cross Buds devise lapsed, Buds portion is added to Red Crosss residue *FL antilapse covers time period 1 and 2 (some states only cover time period 2) TRIGGER FACT TF 1 Will executed; TF 2 Marriage, TF 3 Death without new will adding new wife. Lapse and Anti-Lapse - Anti-lapse -- PURELY STATUTORY o Fl covers time frame 1 and 2 - Anti-lapse statutes (when they apply) provide for a substitute taker for the deceased devisee o Looking for a Dead devisee for anti lapse - FL 732.603: o Note introductory clause:(1) Unless Contrary Intention Appears in Will Language that blocks the application of antilapse statute

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(3) antilapse is supposed to step in when the testator has not thought of what would happened (unintentional omissions) (3) says survivorship language is enough to block o Blocks bc shows testator thought of it In UPC need to have clear blocking language

732.603(1) - Unless Contrary Intention Appears in Will - Type of devisee covered by our anti-lapse o Lineal decedent of grandparents of the testator (including GPs) o (relatives) - (a) and (b) when devisee died (time frame) or (c) deemed dead (e.g., killer) o If you kill the testator you are deemed dead - Who replaces covered dead devisee? o the devisees surviving descendants o Descendants of dead devisee only! Lapse Hypo Before Will Execution 2000 Ts Will $1 million to Angela Residue to American Red Cross Q: Angelas devise lapsed does anti-lapse apply? Ts Will - $1 million to Angela; Angela predeceased T What happens to the devise? - If Ts will had provided for an ALTERNATE taker, the alternate taker gets the devise: o $1 million to Angela but if Angela predeceases me, $1 million to David - If no alternate taker and anti-lapse does not apply to substitute someone, then: go to American Red Cross. Lapse Issue: Covers TF1 AND TF2. Covers a devisee who was DEAD at the time of execution. EXAM NOTE: Trigger facts, YOU HAVE A DEAD DEVISEE his gift has lapsed, what happens to his money? SEE ANTI-LAPSE STATUTE TO SEE IF IT APPLIES. 732.603. 732.604: Residuary or Intestacy (1)If a devise other than residuary fails (and anti-lapse 732/603 doesnt substitute) devise goes to residuary Between Will & Death 2006 Angela died

After Death 2008 T died never having revised will

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(2) if the residue is devised to 2 or more and one fials (and anti lapse 603 doesnt substitute) the other residurary devisees take Or intestacy Language that blocks anti-lapse (substitution of descendants) - Check if any blocking language - Alternate taker blocks And - FL blocks substitute gift with any language of survivorship attached to the gift (Different from UPC) 732.603(3)(a) - my IBM shares to my nephew Albert if he survives me - Survivorship language Blocks anti-lapse - Devise to Albert lapses - Goes to residuary FOR EXAM: Will anti-lapse statute apply? - Step 1 Check if any blocking language Unless contrary intent appears in will o If alternate taker blocked o In FL If language of survivorship attached to gift blocked - Step 2 -- Check degree of relationship required in jurisdictions anti-lapse statute between dead devisee and testator only certain devisees are covered. (Gparents or descedents of G-parents of T are covered under antilapse Spouse is not covered by antilapse.) o Most anti-lapse statutes require consanguinity if the predeceased devisee falls within this category then devisees surviving descendents will take, per stirpes. o (dont cover deceased friends or dead spouse) - Only grandparents and descendants of grandparents count! What type of devisee covered in FL? - GP or T or lineal descendant of GP of T - What if Angela is Ts sister? - Is a sister a lineal descendant of Ts GP? HYPO: Assume Angela is Ts sister: THIS IS ON THE EXAM GP Parent Testator Angela Bob

Ts Will $1 million to Angela ->Angela has will: Angelas Will -> Residuary to NSU Residuary to Anti-lapse Statute provides for only specified
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Red Cross

substitute takers for a covered dead devisee

***DO NOT GIVE TO ANGELAS DEVISEES (NOT NSU)***GOES TO RESIDUARY IN TS WILL -> Red Cross. The fact that Angela has a will is irrelevant. ONLY DESCENDANTS *Dead Devisee=Lapse o Angelas Descendants Angela C1 GC1 GC2 C2 C3

Why covered devisees descendants? - Underlying assumption is testator would want such people to be substituted for deceased devisee - Why not substitute the dead devisees spouse? - Presumed intent would be for descendants (keeping with the consanguinity presumption) - Recall only relatives qualify as covered devisees Lapse & Anti-lapse Analysis Dead Devisee? Alternate Taker in Will? YES Alternate taker gets devise NO Contrary blocking language YES Gift to Residuary or Intestacy NO Dead devisee covered by ant-lapse stature? NO YES Is dead devisee survived by descendants? YES Descendants substituted for deceased devisee

What if sister Angela never had children? - The gift to residuary or intestacy = would have to go to 604 - 732.603(3) Words of survivorship are contrary blocking language. Because if there are these words then T thought about where the estate would go and did NOT want it to go to the descendents of Angela. Gift goes to residuary or intestacy. Class gift or individual fractional interest? - To my sisters, Sue and Lisa - Residue to charity - What if Sue predeceases? -> Is sister a covered devisee? o Yes. If Sister Sue left a descendent then 603 says that it applies to class gifts AND individual fractional interests. So we do not have to do analysis as to whether there was a class gift or an individual fractional interest. THIS WILL BE ON TEST - What if dead Sue does not leave any descendents?
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We must then determine whether the T intended the devise to be a class gift or individual fractional interests? o Focus on Intent of Testator o If T had other sisters and only named two then the courts likely to find this an individual devise since she left out the other sisters. o If it is viewed as an individual gift then Dead Sues gift will go to residuary. - Group mindedness Rule of thumb - If takers are referred to only by the group label (my children) -- presumed to be a class gift - If instead the takers are referred to by group label and by name or number (e.g., my 3 children or my children Ann, Bob, and Carol) -- gift is presumed to be a fixed fractional interest not a class gift Dead Devisee? Alternativeater Pg 246 Lorenzo v. Medina (2010) T devises to Brother Medina and to brother-in-law Lorenzo in equal shares. If either of them do not survive me, the share of the deceased shall be given to their surviving spouse, Medina or Lorenzo respectively. Brother Medina dies and Juana Medina also predeceases the T. Since Juana was not a descendent of the Ts grandparents then the antilapse is blocked and the children of the Brother Medina do not get anything. The brother-in-law gets everything.

11/10/09
Class Gifts What if a class gift (to my children or brothers and one of the class members predeceased the testator? - Does FL antilapse apply to substitute descendants of deceased class member devisee? o Yes, FL Covers deceased covered class members 732.603(3)(b) 4.a & b - What if dead devisee not a covered devisee or left no descendants? - Class membership then matters for lapse Intent of Testator -

732.604 (1) If a devise other than residuary fails (and anti-lapse 732.603 doesnt substitute) devise goes to residuary (2) If the residue is devised to 2 or more and one fails (and anti-lapse 732.603 doesnt substitute), the other residuary devisee takes or
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(3)Intestacy Just the class group presumed to be a class If they name them fist then describe them court may view this as indvidual If they name them after the description of the group - ????? Hypo: Testators Will - $100,000 to my children Al, Bob, Carol, Don - Rest and Residue to my new wife Q: Assume when T executed the Will he had 4 children from his first marriage, Assume one child (A) predeceased the testator. Is deceased devisee a covered devisee (i.e., descendant of grandparent)? - Yes, if you have a class gift does not matter if it was intended or not go to statute WHEN COVERED BY STATUTE o If have dead class member o What if it had said sorority sisters: then antilapse would not apply bc not a covered class - What if deceased devisee left no descendants? - Q: What happens to that childs share (i.e., the $25,000)? o If it is a class gift, the class opens and closes until the testator dies, Thus, $25,000 goes to other remaining children when the class is covered by 603 - If not a class gift then lapse and goes to residuary (second wife) o ONLY WHEN THE CLASS IS NOT COVERED IN STATUTE THEN YOU CAN DETERMINE WHETHER TESTATOR INTENDED TO DEVISE OR NOT Class Gifts continued - Fla covers deceased class members 732.603(b) 4(a)&(b) Davis v. Arkenberg p. 229 - Testatrixs Will - Certain real and personal property to (these are step children) o Jr., Ralph, W.W.M., Louise, & Francis Who are the children of my late husband - 3 of the 5 step children predeceased testatrix - Were these deceased devisees covered devisees for anti-lapse (descendants of grandparent of t)? o No - What happens to a deceased step childs share? - If it is a class gift the class opens and closes until the testatrix dies - Thus the property goes to other remaining step children - If not a class gift then lapse goes to residuary/intestacy - Here court said not a class (because Testatrix named them all and therefore had fractional interests in mind) o Need to look at intent of testator whether he wanted to group them all together
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o Just because they describe whom they are does not necessarily show an intent to create a class gift.

ANALYSIS of Lapse Issue SPOT: Look to see if there is a dead devisee 1) Look to the will a. Language of survivor ship b. Contrary language c. Alternate taker 2) See if covered devisee a. Parent or decedent of grandparent 3) If so, see if the dead devisee is part of class gift a. If the dead devisee is a member of a class i. Fl says is fine that there is dead member 5 common types of nonprobate property 1) Homestead 2) Life insurance proceeds where the decedents estate is not the beneficiary 3) Intervivos Trust 4) Pension Plans 5) Property with Right of Survivorship -- Property held as TBE or JT with right of survivorship Homestead - Does not transfer through probate goes through the Fl constitution - FL law uses the term homestead for different purposes See Note 1, Page 257 1. Article VII, Section 6 a. Real estate tax exemption for homestead 2. Article VII, Section 4 a. Real property 3% annual cap on increases 3. Article X, Section 4 a. Protection from forced sale protects homestead as defined in Art X b. Restrictions on life transfers and c. Restrictions on devises of the homestead in certain instances if you have a minor child you cannot devise the homestead to anyone else. Homestead Article X, Section 4 - Protect a homeowner or the owners family from forced sale by certain creditors and - Safeguards the family from transfers or disinheritance under certain circumstances o This blocks will language that deviates from constitution

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Florida Const. Article X Section 4: Homestead Exemptions a) forced sale provision - only certain creditors b) inuring c) restrictions on lifetime transfers and devises (a) There shall be exempt from forced sale the following property owned by a natural person: (1) Physical limits - No dollar cap just acre restrictions - The only people who can do a force sale are 11/12/09 - For forced sale need to figure out whether it is homestead - There are significant restrictions on devise What constitutes homestead: 1) Within the size limits (160 or acre) up to 160 acres if outside municipality and acre if inside a. Only the amount within the size limits above are protected, anything exceeding is not protected. b. No dollar cap amount, just a physical acreage cap c. What if it becomes incorporated do not lose the160 d. Note also if outside municipality get to count both residence and other improvements (including business) on the 160 acres e. Davis v. Davis p. 238 f. Power of Semicolon separated the two types of homesteads 160 acres and acres whereby the court in Davis found that the limited to the residence within the statute only applied to the acre within the municipality. g. Must be homestead and must be principal residence and meet occupancy but h. Is the homestead protection limited to the part that is the principal residence? i. Section 4(a) i. a homestead if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon ii. OR if located within a municipality to the extent of one-half acre limited to the residence of the owner or the owners family 2) Principal resident occupancy by Florida Resident a. Must be a resident of Florida i. NEED to SHOW: Must have a residence in the state & actual intent to remain in the homestead (reside in Florida indefinitely) 1. If you put g-ma in nursing home and say not coming back = then lost homestead 2. But not necessarily lost, especially if the gma is convinced she is going back home this would show she intended to return. b. Need to establish occupancy to get protection occupancy of owner OR owners family owner never lived in house still okay if owners family lived there.
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i. What if empty lot 1. Then get a trailer or something and get on land c. Once occupancy established not lost unless abandoned i. So wont lose if there is fire ii. Abandonment requires intent to abandon just bc gone for a long time does not make abandoned iii. If there is belief and intent to come back, then strong argument that you do not lose homestead. d. Proceeds from a voluntary sale exempt if owner proves intent to reinvest in another FL homestead within reasonable time and proceeds kept separate 3) Owned by a natural person a. Pre-1984 Article X, Section 4 required homestead to be held by head of family b. 1984 Constitutional Amendment changed head of family to natural person c. Not an entity such as a corporation i. So do not want the house held as family corp d. In a situation where it is 160 acres outside of a municipality, if there is a farm on property which is incorporated, this is okay as long as the property is owned by a natural person it is protected by homestead. e. Issue: What if homestead held in a revocable trust? i. Courts split on this issue 4) Real Property a. Real property not personal property (Const allows $1k personal prop protection) b. Single family home, townhouse, condos, mobile homes, modular homes c. Cooperative? (Owner of a co-op owns stock in the company) Article X, Section 4 (a) and (c) d. What if you are a mobile home owner, on leased property? Constitution will NOT help you. Statute 222.05 will protect from forced sale of the mobile home but doesnt come with other protections. e. Co-Op & Protection from forced sale the below case dealt with the protection from forced sale: i. Southern Walls v. Sitwell Corp. - a cooperative apartment is protected from forced sale f. Co-Op & Restrictions on devises The below SUPREME CT CASE i. In re Estate of Wartels (a cooperative apartment may not be considered homestead property? For the purpose of Florida law governing devise and descent.) ii. Phillips v. Hirshon: Father devised his Key Biscayne penthouse coop to his girlfriend. At his death one of his two sons from a prior marriage was a minor. Court felt constrained by Estate of Wartels to hold that coop was not real property for purposes of homestead descent Florida Constitution Article X - What type of creditors are NOT barred from forced sale? - Super Creditors (only these 3)
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o 1) Federal, state, local taxes & assessments (taxes and assessments) IRS Assessments for condos or Home Owners Associations o 2) Mortgage lender or home equity lender (for purchase, improvements, repairs) o 3) Mechanics lien holders (field or other labor performed ON THE REALTY) The pool builder Who benefits from the exemption from forced sale after homestead owners death: (b) o These exemption shall carry over to the surviving spouse or heirs of the owner o What if homestead go to owners best friend then can force a sale (bc not heir)

Protection from forced sale inures to spouse or heirs - 732.102 and 732.103 - Amended 4 (a) natural person and 4 (b) heirs allows exemption to inure whether decedent had dependant heirs or not at time of his death Snyder v. Davis p. 242 - Betty Snyder devised to granddaughter Kelli even though son alive - Did exemption from forced sale inure? - Fla Supreme Court Held - RULE: exemption inures to any class of persons in intestacy statute (732.103) In Moss v. Estate of Moss Court applied Snyder and held that the deceased husbands relatives are included within the class of heirs to whom the homestead protection inures because Fla. Statute 732.103(5) includes as heirs kindred of the last deceased spouse of the decedent... Pg 269 in book. Hypo: Assume Decedent had owned homestead - Facts: D died single and childless. D had for years lived with his girlfriend Lola. Ds will devised his homestead to my companion, Lola, in fee simple. Q: What if Ds last illness left him with numerous debts and those creditors wanted to force a sale of the house to pay Ds debts? Did Ds protection form forced sale inure to Lola - NO they can force sale Q: Is Lola Ds spouse or heir -- NO Hypo Variation Assume Decedent had owned homestead - Facts: D died leaving behind his wife. Q. What if Ds last illness left him with numerous debts and those creditors wanted to force a sale of the house to pay Ds debts? NO

Chames v. De Mayo (2007)

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DeMayo entered into a retainer agreement with a lawyer that waived his right to claim homestead if lawyer imposed liens for fees Was this a proper alienation under 4(c)? No the court held that this is not proper alienation (waiver) The owner under 4(c) (joined by spouse if married) may alienate by mortgage, sale, or gift however in this case the court found that this agreement was not the equivalent of a mortgage proceeding because the process of signing a mortgage would have provided DeMayo with enough knowledge as to the extent of what he was doing whereas this agreement was not sufficient to be viewed as the equivalent of entering into a mortgage. Court said you have to look at the FL constitution to see what can be done with a homestead. Was it a proper waiver under the constitution? No because the only waivers that the court allows for homestead are spouses waiver with pre-nuptial agreements.) This is because not only is the person owning protected by the spouse, minor children, and the State (because the state doesnt have to provide for the spouse and minor children left on the street) are protected by the homestead protection.

11/17/09 Restraint on Alienation 4(c) - Brought back into decedents estate - Married spouse owning title alone cant alienate homestead without the other spouse joining in the conveyance o Does not apply to minor child - Applies ONLY to marriage - If the owner is not married can sell or mortgage or give away Hypo - H, a widower, owns fee simple title to homestead - H marries W - Can H sell house without Ws consent? o NO, H cant sell his house without Ws consent Restrictions on Devise of homestead 4(c) - FL law also restricts a persons right to devise homestead - However, he can sell it, give it away, or mortgage it as long as spouse also agrees to this. - Constitution Article X, Sec 4(c) and 732.4015(1) o So if citing authority need to cite both - Cant devise if survived by spouse or minor child, except can devise to the spouse if there is no minor child the devise would be invalid if not to spouse or minor children. - Rule #1 If individual survived by minor cant devise at all - Rule #2 If individual not survived by minor but is survived by spouse, can only devise to that spouse - If owner dies intestate or if testator attempts invalid devise of homestead the devise is not enforced o Homestead would descend by operation of law =2 Statutes 732.4015, 401
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732.401: Descent of homestead: applies -- Intestacy unless surviving spouse and lineal descendants (surviving spouse gets LE and lineal descendants get VR) OR Spouse can choose to get as a TIC; other to descendants, per stirpes. Must make choice within 6 months. - COURT HAS TO FOLLOW THE CONSTITUTION AND THE STATUTE In re Estate of Finch (p. 240) Fla supreme court case - John Finch survived by spouse and two adult daughters - His Will left homestead to his wife for life with a vested remainder to one of his daughters Was that a valid devise of homestead? - No bc did not devise it all to the spouse (Rule #2) The only devise he could do since he did not have minors, was to the spouse. If the devise is not ACCEPTED BY THE CONSTITUTION then look to the statute to determine how it will be devised (732.401) - Since there was an invalid devise, this homestead would descend by operation of law = 732.401 - So, descends pursuant to 732.401 o Life estate to wife, vested remainder in the 2 daughters Under new 401(2) the wife could have elected as TIC and 2 daughters would have other . This law was not in effect at this time. City National Bank v. Tescher p. 241 - Owner survived by adult children and by a husband who had waived homestead rights in prenuptial Was owner allowed to devise the homestead? - Rule #1 If survived by minor cant devise: does NOT apply here - Rule #2 If not survived by minor but survived by spouse, can only devise to that spouse - Here devise valid even though husband alive, because Husband waived rights in prenuptial so deemed to have predeceased (presumed dead) Tenancy by the entirety (TBE) Passes by operation of law because it is survivorship property (has own transfer system) Article X, Section4 - Protection from forced sale Yes Restrictions on devises - No - 732.401(5) - TBE property goes to surviving spouse by operation of law because it is TBE property - Surviving spouse takes TBE property automatically by right of survivorship Exempt Property - Fla. Constitution Article X. Section 4(a)(2) (p. 234) exempts from forced sale Section 1000 personal property 732.402 also provides protection against creditors from certain types of tangible personal property
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What property is Exempt Property under 732.402(2) - Household furnishings & appliances up to $20,000 net value at the time of death (used refrigerator not worth as much as if it was brand new.) - 2 cars (motor vehicles) in decedents name used by decedent or his family o Note no $ limit on the cars o But regular personal use (NOT BUSINESS TRUCK) by immediate family members and 15k lb weight - All 529 college plans - Death benefits for child dependents of teacher killed on duty o Barry Grunow Act Who gets exempt property? - 732.402(1) o Surviving spouse if there is a SS then SS gets it all and children get nothing. o Or, if no surviving spouse (ONLY IF NO S-SPOUSE), the decedents children (NOT DECENDENTS, ONLY CHILDREN IF NO S-SPOUSE). - 732.402(3) not exempt to the extent of security interest in the property (e.g., car loan) if there is a loan outstanding on the car, the lender can take away car. - 732.402(5) not exempt property if decedent had specifically or demonstratively devised the property o e.g., my car to my sister not exempt property (if creditors there is problem) o note if specifically devised to spouse (or to children if no spouse) the specific devisee could ask the court to declare it exempt but need to ask - 732.402(6) move fast have only 4 months Family Allowance - 732.403 gives you money early if court is taking a lot of time - Who gets family allowance? o Surviving spouse and lineal heirs decedent was supporting (or obligated to support) o Note: not limited to lineal descendants So if the decedent was supporting parents would apply to them - How much: Court determines but cant exceed $18,000 - Introduction to Elective Share - First distinguish pretermitted spouse

Homestead Chart Facts

7. Single, no

Can ABC attach homestead while H is alive? No

Can H alienate the homestead? Yes

What happens if H dies intestate? No

Can H freely devise the homestead? Yes

Can ABC attach the homestead H devises? No

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children 8. Spouse, no children 9. Spouse and minor child 10. Spouse and adult child Facts

No No No

No No No

No No

No No No

No

7. Single, no children

Can ABC attach homestead while H is alive? no. H is a natural person and ABC is not one of the 3 supercreditors in Art X, section 4a

Can H alienate the homestead? Yes. H doesnt have a spouse. Restriction on alienation is Art X Sec 4c only applies if married

What happens if H dies intestate? 732.401(1) if homestead not devised as permitted, and H not survived by a spouse and lineal descendants, it descends under the laws of intestacy. Here no devise and no spouse so it would descend to H heirs under 732.103 732.401(1) Here no lineal decendants so LE provisions dont apply, go to 732.102 (all to W) cant devise has minor child (Rule 1) 732.401 W gets LE and minor child gets VR

Can H freely devise the homestead? Yes. No spouse or minor child 4c and 732.4015 restrictions dont apply here

Can ABC attach the homestead H devises?

8. Spouse, no children

No. H is a natural person and ABC is not one of the 3 supercreditors in Art X, section 4a

would need spouses consent. Cant do it alone.

W gets it.

9. Spouse and minor child

No (same as above)

needs her consent (could tranx as TBE)

now cant devise at all not even to W; section 4c and 732.4015 absolute restrictions on devise apply b/c H survived by a minor child

10. Spouse and adult child

Pretermitted Spouse Statutes Before

Between

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Will Execution

Will & Death Will executed Death Testator dies

After

Pretermitted Spouse only if marriage after Will execution o Section 732.301 -- surviving spouse can claim an intestate share of decedents probate property (as a pretermitted spouse) unless one of three exceptions applies: (1) Prenuptial or postnuptial agreement; (2) The spouse is provided for in the will; or (3) The will disclose an intention not make provision for the spouse.

Hypo: Late-in-life Second marriage. Second spouse had substantial assets. T leaves his will unchanged assuming all of Ts estate will pass under the will to his children from the prior marriage. o 732.301 Pretermitted spouse o 732.102 Spouse receives of estate, children from previous marriage receive

11/19/09 Spousal Elective Shares Partnership Theory of Marriage - Recognize each spouses contribution to the economic success of the marriage - Separate-property (English common law states) and community-property states (Spanish and French settlers) o FL is separate property estate o Community property system each spouse by virtue of the marriage each gets half each spouse owns together the earned property obtained during the marriage Divies up property EARNED DURING MARRIAGE Typically things that are inherited during the marriage are excluded - Even separate property states use partnership theory for divorce o each spouse owns their own separate property o but for divorce does more of a 50/50 basis (equitable distribution) - Elective share statutes apply to implement a form of partnership theory to prevent intentional disinheritance upon death o They are saying the decedent has acquired what they have bc of contributions to the marriage o Do not need elective share statutes in partnership theory states UPC Spousal Elective Share gives smaller amount for shorter marriages and it increases overtime. UPC is 50% of the Elective Estate Some elective share statutes allow election against probate estate this is only in some states, FL use to be this way. FL pre-1999 o Spouse entitled to 30% of Probate Estate
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o Non-probate assets were not subject to election o e.g., Property the decedent held as a tenant with right of survivorship, life insurance benefits, retirement accounts, property held in an inter vivos trust escaped inclusion so if the state uses Probate Estate, a spouse can disinherit using one of these avenues when State is Probate Estate Elective State. Now FL uses Elective Estate not Probate Estate Note: still not partnership theory of marriage because no sliding scale where % based on years of marriage How much is FL Elective Share % FL 732.2065 30% of Elective Estate o Flat 30% regardless of length of marriage (short or longer marriage).

STOPPED HERE FORMULA Add up all of the Elective Estate, multiply that number by 30% = Spousal Elective Share Value all probate assets all are part of the elective estate, regardless of who gets it pursuant to will. Value all the non-probate assets F.S. 732.2035(1)-(9) EE x 30% = Spousal Elective Share EE = probate and non-probate assets defined in 732.2035(1)-(9)

HYPO: if you get married young and husband has a lot of assets wife does not have any, they are married for a year he doesnt leave her a lot in the will. - Fl she gets 30% of estate - And if it was a 25 year marriage would only get 30% - UPC has sliding scale longer the marriage more you get once you hit 20 hits 50 and does not go up

Assets Included in Elective Estate: - The elective estate of the decedent is a broad concept - It encompasses probate and a variety of nonprobate assets - FS 732.2035(1)-(9) The elective estate is a broad concept includes: (1) probate estate - Will or Intestacy

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(2) accounts or securities in POD accounts, and decedents interest in accounts held in right of survivorship; Ex: Hs bank account provides that it is Payable on Death to his daughter. Since H could have up till his death withdrawn entire amount, the entire amount in the account is in the elective estate (3) other property held in right of survivorship - Ex: H and his 2 brothers own investment land in joint tenancy with right of survivorship. H dies, survived by his 2 brothers and his W. Because there were three cotenants, one-third of the value of the land at Hs death is included in the elective estate. BECAUSE WE LOOK AT WHAT HE HAD JUST BEFORE HE DIED. We are not giving it to the W we are just using it to get a number to determine her 30%. - Ex: H and W owned a vacation house as TBE. Hs interest in the TBE is included in the elective estate it doesnt matter that the W is getting it later, we look at what the deceased spouse owned at time of marriage.

(4) property in a revocable trust dont need to know in detail bc will learn in trusts - Ex: H creates a revocable trust, providing for the income to go to H for life, remainder in fee to Hs child, C. Subsequently H dies without having revoked the trust, survived by W and C. The entire value of that revocable trust at Hs death is included in the elective estate - if husband has right to revoke do not care who the other beneficiaries are -Since he could have revoked it while he was alive, this is considered what he owned at time of his death. (5) property held in a discretionary trust for settlor (or trust where decedent had right to income or principal) - Ex: If principal of irrevocable trust could be distributed to or for the benefit of the decedent (deceased spouse), the trust assets are included in the elective share (6) cash surrender value of insurance policies on the decedents life not the face amount on the policy. So if it is a term policy it is zero. Only cash surrender value is included in elective estate. - Ex 3 p. 260: George purchased a whole life insurance policy in 2002. Immediately before his death, the policy had a cash surrender value of $2,000. The policy proceeds payable at his death were $100,000. Only $2,000 is included in the elective estate. Only cash surrender value included in decedents elective estate o NOT the value of the policy Ex. Face amount of whole life policy is $100,000 o Cash surrender of $2,000 How much is included in elective estate? o Only $2,000
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Term policy no cash surrender value So if term policy is 100k then survivng spouse not entitled anything under this policy

(7) death benefits payable under qualified and nonqualified retirement plans (8) certain transfers with 1 year of the decedents death (9) property transferred in satisfaction of the elective share It is the fair market value at time of debt.

EXCLUDED FROM ELECTIVE ESTATE Assets Excluded from the Elective Estate 732.2045(1)(a)-(i) nine exclusions 1. Transfers that were irrevocable before 10/1/99 and irrevocable transfers made after that date but before the decedent married the surviving spouse 2. Transfers if the decedent received adequate consideration 3. Transfers to which the spouse consented in writing (signing for gift tax return is not consent of spouse) 4. Proceeds of an insurance policy covering the decedents life to the extent the proceeds exceed the cash surrender value 5. Policy on the decedents life if it is maintained pursuant to a court order a. Usually this happens in cases of divorce (to support child) 6. Decedents half of certain property that is treated as community property 7. Property held in a special needs trust at the decedents death 8. Property that is included in the decedents federal gross estate solely because the decedent held a general power of appointment over the property. 9. Property that is the decedents homestead (there is protection from the surviving spouse through the homestead statute so she doesnt get to include this in the elective estate.) Valuation 732.2055(5) - Property included in Elective Estate at its FMV minus (claims, mortgages, liens, and security interests) - Claim defined in 731.201(4) o Dont get to subtract out expenses of administration or estate taxes
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o Can subtract real claims against the decedent So if decedent had a vacation home in her name and it is worth 300,000 but there is a mortgage on it for 200k then 100,000k is what is added to the elective estate. Liabilities of the decedent and funeral expenses are subtracted from the elective estate. Three Steps 1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045 and subtract claims of decedent, funeral costs of decedent, mortgages, liens, and security interest) 2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate (i.e., 30% of the amount from step 1) a. Take # from 1 and multiply by 30% 3. Satisfy the Elective Share Amount a. Property passing to Spouse is applied first (the below will offset her amount entitled to under elective estate 732.2075(1) i. Anything in decedents Will to surviving spouse or TBE property ii. Life insurance policy payable to spouse iii. Retirement benefits payable to spouse iv. Value of property spouse getting by right of survivorship otherwise b. Unsatisfied balance abate under 732.2075(2) i. This tells you who loses to pay off the spouse 1. Anything in probate estate or revocable trust goes 1st Election Hypo : Hs will leaves his wife 20K and his son C from first marriage gets the residue. Wife wants to exercise her right to the elective estate. - H dies with probate assets (some stocks in his own name) of $230,000 and has $30,000 of outstanding claims. - H and his sister hold title to land worth $300,000 in JT w/ rights of survivorship - H and W own title to vacation home worth $200,000 as TBE - H created a revocable trust for the benefit of H for life, remainder to C (Hs child from a prior marriage). The value of the trust at Hs death is $500,000 Step #1 determine Elective estate by adding all Hs assets less claims Probate Assets JT Land TBE land Revocable Trust $200,000 ($230,000-30,000 claims) $100,000 (300,000-200,000 2 sisters %) $100,000 (200,000-100,000 her % of TB is subtracted $500,000 (the entire 500k applies because it is revocable)

$900,000 = elective estate Step #2 multiply by 30% to get elective share amount $900,000 x 30% = $270,000 - Determine how much she gets
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Step #3 Satisfy $270,000 first with property going to W (20k from will and 100k from TBE = $120,000) - 20K from the will and 100K of the TBE 270,000-120,000 = 150K balance - 732.2075 If spouse entitled to more then go first to Class 1 = probate AND revocable trust PROPORTIONATELY then if need be, go to next 2 classes. - 150K is going to come out of probate assets and trust probate assets worth 200k and trust work 500k so 75k from each - C will have a trust worth

Election Hypo Revised: same as above but - H owned a term life insurance policy on his life with a face amount of 500K payable to C (Hs child from previous marriage) No cash surrender value Step #1 determine Elective estate by adding all Hs assets less claims $200,000 Assets minus claims $100,000 house with sisters $100,000 TBE property $0 $400,000 Step #2 multiply by 30% to get elective share amount $400,000 x 30% = $120,000 Step #3 does not get anymore (She gets $20,000 from Will and the $100,000 from the TBE property = $120,000) SO BY USING THE TERM LIFE INSURANCE POLICY WILL PREVENT WIFE FROM ELECTIVE ESTATE ENTITLEMENT. - TERM LIFE INSURANCE POLICY

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What is the elective estate? It is what the decedent actually own before he died. We determine this by looking to the statute 732.2035 to determine what is considered within the elective estate. Pg 299 Hypo #3 Al Died Survived by his mother L His wife W Two daughters S and R 5 grandchildren 11 great-grandchildren and Two Great-great grandchildren He owns: Stocks and bonds worth $500k held JT w/ROS to L Whole Life Ins Policy 1mil death beenfits to his grandchildren (surrender value 300k Investment land in Miami worth 1mil Inv land in Oregon worth 1mil Savings acct worth 50k (registered to Al, POD W) Al and W lived in an apartment All the furniture belonged to W inherited from her parents Als will devised the Miami land to W for life, remainder to S and R Based on her age at A;s death, Susannahs life estate was worth 200k Als will devised all his other property to his G-grandchildren If Susannah decides to take her elective share, to what amount is she entitled?
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From which assets will the funds to satisfy her share be taken?

Step One: Go to 732.2305 Probate Property 1st = 1 mil for Miami house & 1 mil for Oregon property = Account POD = $250,000 Savings Account = 50,000 Cash surrender value of Life Insurance Policy = $300k 1,000,000 1,000,000 250,000 300,000 50,000 2,600,000 = estate to mulitply the 30% $780,000 Step Two: 732.2075(1) subtract what wife gets per will We must subtract what the W gets per the will from the elective estate $780,000 ($200,000 + 50,000) = $530,000 Estate What W gets per the will (LE from Will and POD account) = Wife entitled to $530,000 balance. Step Three: Figure out how to statisfy the rest = 732.2075(2) tells us to next subtract from the decedents probate estate and revocable trusts. ASK PROF WHO PAYS JT ACCOUNT? TRIGGER IN FACTS TRAGEDY HAPPENS MULTIPLE FAMILY MEMBERS DIE Survivorship Advancement Slayer Ademption by Satisfaction Waiver, Agreements regarding Succession What happens to property when common disaster or accident - TRIGGERS o Intestate (or Testator) and beneficiary both die o TBE and both spouses die o JT w/ right of survivorship both/all die o Insured and named beneficiary both die o FL 732.601 o If insufficient evidence as to order of death assume decedent (e.g., property holder/insured/testator) survived his beneficiary (i.e., assume beneficiary died first)
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o UPC State Under UPC a decedent is deemed to have survived the beneficiary UNLESS the proponent stating that beneficiary survived decedent can prove WITH CLEAR AND CONVINCING EVIDENCE that the beneficiary survived the deceased for 120 hours (5 days). o FL 731.103 Evidence as to death or status Death certificate is prima facie evidence of death o This applies if there is a will, if T dies intestate, tenancy property, TBE, and insurance o Rimmer v. Telsa p. 307 George (H)-Mildred (W) H and W owned their house TBE and other property as JT w/ Rights of survivorship If insufficient evidence that they died other than simultaneously, 732.601(3) if we dont know then we will just do half and half (or if there are 3 JTs and all 3 died then 1/3 to each decedents family) therefore Hs goes to Hs heirs and Ws goes to Ws heirs If evidence shows W survived, W got Hs 1/2 at Hs Death, so Ws heirs get 100% - Standard TBE distribution. What evidence was there here? The doctor who arrived at the scene stated that W died 15 minutes after H but the Death Certificate said approx 9:00 a.m. for both. The court found that the doctors testimony was sufficient to rebut the death certificates time of death. o Length of Survivorship p. 277 732.601 need to find sufficient evidence to conclude that the deaths were not simultaneous (Estate of Shine not just any evidence, must be more than insufficient evidence). But no required period of time (recall 15 minutes in Rimmer v. Telsa) Contrast UPC requires survivorship by 120 hours (5 days) o Question 6 p. 279 H & W own property TBE and each have some property in their own names. Each have children from prior relationships. Wifes Will Husbands Will My property to My property to my husband if he my wife if she survives me, if survives me, if not to my children not to my children If H & W die in common disaster and there is insufficient evidence as to order of death who receives the TBE and other property? Then to Hs heirs and to Ws heirs o Killer (Slayer) Statute p. 279 732.802(1) unlawfully and intentionally kills or procures Estate of decedent passes as if the killer had predeceased Applies for both testate and intestate situations. 732.802(5)
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Murder conviction is conclusive In absence of murder conviction, court may determine by greater weight of the evidence if killing unlawful and intentional o Estate of Benson p. 285 Margaret died Steven killed sister Carol and brother Scott Margaret Benson Carol Scott GC1 Steven GC2

o Congelton v. Sansom p. 280 Husband stangled his wife Criminal trial found not guilty by reason of insanity Court analyzed 732.802(5) In absence of murder conviction, court may determine by greater weight of the evidence that killing was unlawful and intentional o Advancement p. 293 Common law any lifetime gift was presumed to be an advancement Now Statutory typically presumption is the other way (i.e., gift presumed not advancement) o 733.806 If person dies intestate Property decedent gave during lifetime to an heir is an advancement if Declared in contemporaneous writing by decedent or Acknowledged in writing by the heir What if recipient predeceases intestate donor? o Advancement Hypo: Mom (a widow) dies intestate. M has estate worth $50,000. M had 3 sons. One son, S1, received an advancement of $10,000 (assume writing requirement met). Mom S2 S3 $10,000 advance is added to the $50,000 Hypothetical Total of $60,000 divided by 3 S2 and S3 get $20,000 S1 already has $10,000 so only gets additional $10,000 o Advancement Hypo -- Variation: M dies intestate. M has estate worth $50,000. M had 3 sons. One son, S1, received an advancement of $10,000 (assume writing requirement met). Assume S1 predeceased, leaving two grandchildren. If silent on S1 predeceasing, pretend no advancement and standard intestacy applies. S2 and S3 would get 1/3 each, and GC1 and GC2 would split the remaining 1/3. o Hypo re: probate and nonprobate assets W
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S1

S1 D1 W dies intestate leaving S1 and D1 W and D1 owned real property worth $100,000 as JT w/ Rights of Survivorship W owned a $200,000 life insurance policy on her life and had named D1 the beneficiary W separately owned stocks worth $300,000. How will Ws property be distributed? S1 gets $150,000 D1 gets $450,000 ($100,000 + $200,000 + $150,000) 731.109 Debts owed by heir to intestate o If loan not paid in full, outstanding debt is debited from the heirs inheritances, BUT o If debtor/heir predeceased intestate, debt not charged. 12/02/2008

Ademption by Satisfaction, Disclaimers, Waivers, Agreements Concerning Succession, nonresidents, and Exam Instructions and Review Ademption by Satisfaction (Property is deemed already satisfied by a gift) o FL 732.609 o Lifetime gift by testator to a devisee only reduces a devise if Have direct written evidence of intent that lifetime gift reduces the devise Written in Will; Contemporaneous writing by testator, or Acknowledged in writing by devisee/donee o Not to be confused with Ademption by Extinction (property devised later gone) o Similar to Advancement for Intestacy (733.806) Disclaimers o Reject property o 739.101-107 o Often for federal estate tax reasons o Who takes disclaimed property? o 739.201(2) and (3) If instrument provides for alternate taker, alternate taker takes Otherwise, treat disclaimant as having died o Limits on disclaiming when in financial problems Waivers o FL 732.702 o Formalities? o Written, signed in presence of 2 witnesses o Note: 732.702(1) Waiver of all rights waives (everything): Right to elective share, intestate share, pretermitted share, homestead, exempt property, and family allowance
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o If prenuptial agreement, waiving spouse not entitled to fair disclosure 732.702(2) Agreements Concerning Succession (e.g., to make will, not make will, not revoke) o Sometimes made with pre- or post-nuptial agreements o Sometimes for caretakers If you care for me in my old age, I will provide for you in my will o 732.701 o In writing and signed by the agreeing party in the presence of two witnesses o Note: 732.701(2) Nonresident administration o Conflicts of laws rule o FL Stat. 732.502(2) Will executed by nonresident valid in FL if valid where executed Unless Holograph (i.e., not attested or nuncupative) Nonresident administration -- Ancillary administration o Ancillary administration is administration in a state or country other than where decedent was domiciled o Real property located somewhere other than where decedent died domiciled is subject to ancillary administration If FL domiciliary owns real property in another state (e.g., North Carolina) need ancillary jurisdiction If other state resident (e.g., North Carolina domiciliary owns real property in FL), need FL ancillary jurisdiction o Can aliens (non-citizens) inherit? 732.1101 yes But see Attorney General Opinion p. 7 If beneficiary is a Cuban national or resident of Cuba amount goes to blocked account ***No UPC, ONLY FL*** MC Questions 1. Testators validly executed will My 100 shares of ABC Corp stock to my friend A and Rest and Residue of my estate to the Red Cross. Assume that after the will was executed ABC Corp merged with XYZ Corp and the merged company exchanged all shares of ABC Corp into XYZ Corp. shares. At Testators death testator owned 100 shares of XYZ Corp. Which of the following is the most likely result for Albert? (d) Albert would be entitled to the 100 shares of XYZ Corp shares because the change in the shares was initiated by entity 732.605(1)(c) 2. In 200 F and W have a child P. In 2001 W dies, F marries B in 2003. In 2004, B adopted P. In 2007, Ws mother, Granny, a widow, died intestate. W had been one of 4 children of Grannys. Grannys other children survived Granny. Grannys net distributable assets are worth $400,000. How much can P inherit from Granny under FL law. (a) $100,000 New -- Election Hypo Hs Will leaves his wife $20,000 and his son C, the residue H dies with probate assets (some stocks in his own name) of $220,000 and has $20,000 of outstanding claims
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H and his sister hold title to land worth $200,000 in JT w/ rights of survivorship H and W own title to vacation home worth $200,000 as TBE H created a revocable trust for the benefit of H for life, remainder to C (Hs child from a prior marriage). The value of the trust at Hs death is $500,000 Three Steps o 1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045 and subtract claims, mortgages) o 2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate (i.e., 30% of the amount from step 1) o 3. Satisfy the Elective Share Amount Property passing to Spouse is applied first 732.2075(1) Anything in decedents Will to surviving spouse Life insurance policy payable to spouse Retirement benefits payable to spouse Value of property spouse getting by right of survivorship otherwise Unsatisfied balance abate under 732.2075(2) *Subtract out claims Step 1 $200,000 $100,000 $100,000 $500,000 $900,000

Step 2 $900,000 x 30% = $270,000 Step 3 Satisfy $270,000 first with property going to W ($120,000 the $20,000 from Hs Will and the $100,000of Hs share of the TBE property) so have $150,000 balance New -- Election Hypo Variation Hs Will leaves his wife $20,000 and his son C, the residue H dies with probate assets (some stocks in his own name) of $220,000 and has $20,000 of outstanding claims H and his sister hold title to land worth $200,000 in JT w/ rights of survivorship H and W own title to vacation home worth $200,000 as TBE H owned a term life insurance policy on his life with a face amount of $500,000 payable to C (Hs child from a prior marriage). No cash surrender value. Three Steps o 1. Determine Elective Estate (add all of items in 732.2035, exclude all 732.2045 and subtract claims, mortgages) o 2. Determine Elective Share Amount (732.2065 -- 30% of the Elective Estate (i.e., 30% of the amount from step 1) o 3. Satisfy the Elective Share Amount
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Property passing to Spouse is applied first 732.2075(1) Anything in decedents Will to surviving spouse Life insurance policy payable to spouse Retirement benefits payable to spouse Value of property spouse getting by right of survivorship otherwise Unsatisfied balance abate under 732.2075(2) *Subtract out claims Step 1 $200,000 $100,000 $100,000 $0 $400,000 Step 2 $400,000 x 30% = $120,000 Step 3 Satisfy $120,000 first with property going to W ($120,000 the $20,000 from Hs Will and the $100,000of Hs share of the TBE property) so have $0 balance 2 Basic Rules for All Distribution Systems o Rule #1 A descendants cannot take if he/she has a living ancestor who is an eligible taker e.g., Maternal GM dies and mom alive, GC is not an eligible taker under any intestacy statute o Rule #2 Disregard anyone who died without issue e.g., Mom had 3 kids but one predeceased leaving no children. Two living children each get o Half-bloods (1/2 as much as whole blood) o Adoption cuts off biological (becomes part of adopting family), w/ exceptions o Who is last taker before escheat? Kindred of last deceased spouse. Qualifications for Personal Rep o 733. 302 resident of FL at time of death of decedent and not disqualified Priority of Appointment (Testate and Intestate) FL Presence Requirements line of vision What must witness actually witness o 732.502(1)(b) Mental elements & Formalities o Testamentary Capacity Testators ability to understand in a general way (1) The nature and extent of his property (2) Natural objects of his bounty (3) Practical effect of will as executed (i.e., the disposition he wishes to make of his estate, and the act of making a will) Carpenter and Hack v. James Undue Influence
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o Presumption of Undue Influence 1. Influencer is a Substantial Beneficiary 2. Was in a Confidential Relationship with testator and 3. Actively Procured the will Factors for Active Procurement o 1. Beneficiary present at execution o 2. Beneficiary present when will discussed o 3. Beneficiary recommending attorney o 4. Beneficiarys knowledge of contents of will o 5. Beneficiary giving attorney instructions o 6. Beneficiary securing witnesses o 7. Beneficiary storing the will Revocation o Subsequent valid instrument 732.505 o Physical act 732.506 o Recall Codicils Republication Anti-revival Incorporation by reference Integration Effect of divorce Separate writing for tangible property DRR Anti-revival In case of new will o Problems created by time gap o Homestead Rule #1 Rule #2

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See Estate of Benson Pg 315 Killer Not Entitled to Recieve property or other benefits by reason of victims death. The D was convicted of murder. What effect does 802 have: Margret Benson Killed Scott Benson Killed Steven Murderer Convicted Deemed Dead per 802 Steven kills his brother and his mom Margaret Steven has 2 children Mother Margaret leaves in the will everything to her 3 sons equally. No trial needed to determine if Steven killed because 802 says if a murder conviction, this is conclusive for purposes of this statute. This dispute is about Carol (the sister) stating that since Steven killed mom then his children should be prevented from inheriting. In Stevens inheritance, since he is predeceased, we have to do a lapse/anti-lapse analysis. Since Steven falls within the persons who are covered under anti-lapse and he has descendents so anti-lapse allows his descendents to take. Now we must determine if 802 blocks 802 treats the murder as predeceased, not that he never existed, so the act of the father will not block the children of the killer from inheriting.

Congelton v. Sanson Spg??? Pg 312 The husband who strangled his wife. In the criminal trial he was found not guilty by reason of insanity The court looked to Fla Stat 802 and interpreted it that the widower was entitled to a hearing or trial. The evidence presented at the hearing from Officer Dennis that the husband said I remeber choking her. The court held that insanity is not enough to avoid unlawful & intentional murder, even though he was found insane in the crim proceeding.

LoCascio v. Sharpe pg 317 Convicted of 1st Degree Murder Conclusive, no probate hearing/trial needed. The issue was: What happens with property held by JT or TBE. 802 converts JT and TBE into a TIC and the killer has no right of survivorship. He does nto benefit from the right of survivorship. 802(2) is a severance statute, not a forfeiture statute. You dont lose your own property (you get to keep your portion of the property you own), you just dont inherit from the person you killed.

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Disclaimers probably not on exam You can reject property no acceptance allowed. i.e. instead of giving it to me, give it to my children OR if the property is upside down. Often for federal estate tax reasons Who takes disclaimed property? 739.201(2) and (3) If instrument provides for alternate taker, alternate taker takes. Can make a trust the alternate taker i.e. To my wife, but if she disclaims all or part, to ABC trust set up for my children If T had not dealt with disclaimed property in the will, the disclaimant is treated as having died Limits on disclaiming when in financial problems cant disclaim to avoid creditors. Drye v. US pg 321 cant avoid a federal tax lien by disclaiming.

Advancement Pg 328 USE TO BE: Common Law - any lifetime gift was presumed to be an advancement. NOW IT IS STATUTORY Typically presumption is the other way (i.e. gift presumed not an advancement.)

Hypo Mom w widow dies intestate. M has probate estate worth $60,000. M survived by 3 sons. One son S1 received an advancement of $15,000 (assume writing requrement met). How is Ms estate distributed? The value of the gift is brought into a fake hodge pot: Value of $15000 advance is added to the $60,000 left at death = $75,000 Divided $75,000 by 3 (3 sons) = $25,000 each son First pay the heirs who did not get an advance ment the same amount had the money (the advancment) of still been there: S2 and S3 gets $25k each S1 gets 10 because he already got $15,000 advancement

CHANGE OF HYPO ABOVE: Now the one who got the advancement S1 predeceased leaving two children (Moms GC) The only way the grandchildren are affected is if the writing says that the advancement also applies to the descendents of S1. If it is silent on this issue then we ignore the advancement and pretend it never happened and S1 and S2 get 20k and the two grandchildren (S1s children) get $10k each.

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ADEMPTION BY SATISFACTION Differs from ABE Fla Stat 732.609 You already got your inheritance early. It is a lifetime gift by a testate person to a decisee only reduces if: Direct written evidence of intent that the lifetime gift reduces the device Written in Will Contemporaneous writing b y testator or Acknowledge in writing by devisee/donee Similar to Advancement for Intestacy 733.806

Class notes 12/1/11 Stat 732.109- Debts to decedent * Loan from decedent who died intestate * If loan not paid in full, at decedent's death, outstanding debt is deducted from heir's inheritance. * Basically, the debt is offset. * BUT * If the debtor dies before decedent, the debt is ignored

Waivers 732.702 Prenups! You can waive your right to everything. * Waiver of "all rights" waives: * Right to elective share, intestate share, pretermitted spouse, homestead, exempt prop, and family allowance * There must be 2 witnesses, must have formalities, per legislature. * (2) no disclosure shall be required before marriage, for purposes of debt, for the prenup. but you should do full financial disclosure. * After the marriage, you can still do a waiver, but there must be full disclosure, of assets and debt. Agreements concerning accession- 723.701 An agreement not to make will, not make will, not revoke. * Sometimes for caretakers * If you care for me in my old age, I will provide for you in my will. * Oral agreement no good. Must be in writing with 2 witnesses. * Ways around would to put everything into revocable trust. * Or put into non-probate assets * Or, spend all the money! * (2)- execution of joint wills is not contract under the statute. MUST be separate wills.

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Exam review GO TO TWEN FOR EXAM INSTRUCTIONS Advancement hypo: Mom dies intestate. She has probate estate worth 90K. Sh eis survived by 2 sons. Son 1 got adv of 10K. Value of 10K added to 90K So thwen 100k Divide by 2. Son 1 gets 40K. Hypy 2- same as above, but no writing. So, 90k divided by 2. Each gets 45k. If no writing, ignore gift. *** Homestead* Geog limits, residency * Protection fro forc ed sale * Which credits could force a sale? Taxes and Assessment Creditors, Liens for maintenance and repairs, and construction on property, Mortgages and Loans secured by the property. * When does protection from forced sale inure? It insures upon the death of the owner of the property. * Lifetime alienation restrictions? If have a minor child then cannot devise to anyone. If married and no minor child then can devise the entire property to your spouse. If you attempt an invalid devise, the devise will fail and spouse will get a life estate and your descendents with get a vested remainder in fee simple. Alternatively, the spouse can elect to take interest in TIC and your descendents take the other interest in TIC split between them. * Who are the super creditors? Mortgagors, Taxes and Assessments(IRS, State, HOA, COA), creditors who worked on your house or property. * Devise restrictions? Rule 1? Minor child?- automatically blocked, per 401, thru operation of law (which is intestacy). Spouse has option to do TIC. Rule 2? Spouse?- must all go to spouse * Know 4b analysis! Who does it inure to?? Courts say it can go to grandchildren, since they could have gotten. * 4c- lifetime restriction on alienation * And, who gets it at death Election Hypo-

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WHEN would someone make an elective share? * Its anytime that the 30% is more than she would get without it. * Hypo- H's will names wife as only bennie. * H has probate assets of 200K and 50K claims * H and bro have 200K JT in land * H and wife own titel to vacation home 200K in TBE * H created revocable trust for benefit of H for life, remainder to C, his sone from 1st marriage. 650K So, * 15oK * 100K * 100K * 650K * $1,000,000 * Step 2 is multiply times 30% * = 300K * Step 3 * Satisfy 300K with first prop going to her. 150K will, plus 100K TBE=250K. So, 50K balance.

Lapse & other issues * Simultaneous death What if no evid who died first? You assume bennie died before testator, b/c we want to avoid 2 steps of probate Lapse only applies if there was a will, and named bennie was a devisee If T died TESTATE amd the named bennie died first, then LAPSE issue. Was deceased bennie a GP or descendent of a GP of T? Continue analysis * Pretermitted? What if child is born AFTER will is executed. (time frame 2) and then the child dies before T? Lapse doesnt apply b/c child NOT a dead devisee. Preterm child only applies to kids born after will and 732.302 gives them amt equal to intestate share Intestacy Qs 2 basic rules 1 . A descendant who has living ancestor is NOT an elig taker 2/ disregard anyone who died withot issue Other heirs- descendants of decedent first. Then to mom and dad. Then to brothers and sister s and their descendants. Then, if no one there, split half and half, to to grandparents. Halfbloods- only g et half

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Mental elements 1. Nature expect 2. Bounty 3. Effect of making will Undue influence Not free will of T, but agency of someone else. 3 elements 1. Substantial bennie 2. Confid relation 3. Actively procure i. Bennie present at exec ii. Bennie present When will discussed iii. Rec attny iv. Knowledge of contents of will v. Give attny instructiosn vi. Secure witnesses vii. Storing will This shifts burden of proof. Know Carpenter case. * Revocation * Only 2 ways 1. Suseq valid instrument 2. Phys act

DRR* Anti revival * Time gap Problems caused by time gap * Changes to property Ademptions, accessions, abatement, etc. * Changes to people Death Lapse/antilapse Birth Pretermitted divorce

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