Wills - Ms

Front 1

How do you execute a will? (MS Wills Statute)

Back 1

(1) Testator (T) must be 18 or over - judged at the time will is executed, not at T's death.

(2) Will must be in writing (with one exception of deathbed oral statements).

(3) Will must be written with testamentary intent (no other docs constitute will).

(4) T must sign will . . . (liberal rule: any mark will serve as signature if so intended. Signature may be another person at T's direction in T's presence).

(5) . . . in the presence of two witnesses (OR, must acknowledge previous signature and publish the will (i.e., declare that it is her will) in the presence of the witnesses)

(5) . . . who sign at T's request

(6) . . . and in T's presence.

NOTE: MS statute does NOT require that the witnesses sign in each other's presence.

Front 2

What happens if a portion of the will (e.g., clause naming personal representative) follows T's signature?

Back 2

(1) If clause is present at time of execution - no problem: the will, including the clause, is valid. MS DOES NOT require signature to be at the end (unless Holographic will).

(2) If clause added after execution, then the will is valid but the addition is not. (Uniform rule across the US)

Front 3

T writes a doc in her own handwriting that reads, "This is my last will. I revoke all earlier wills. I leave everything to the YMCA." T signs the document. Is it admissible to probate?

Back 3

This is an example of a holographic will (handwritten, no witnesses).

In some states, Holographic wills are not allowed (as those state require that no will is entitled to probate unless two witnesses - fatal).

However, in MS and most states, a holographic will is VALID if
(1) If in T's own handwriting, and
(2) T's signature is at the end/T signs at the end.

Front 4

What if handwritten document was written on hotel stationary that had the name and address of the hotel printed on it?

Back 4

MS applies the SURPLUSAGE RULE - which states that all extrinsic non-handwritten material can be ignored as long as it is not critical. Valid holographic will.

Front 5

Describe the "presence requirement."

Hypo - T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen, "This is my will. It looks ok; where do I sign?" AFter T signs, will brought out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will been validly executed?

Back 5

No, because MS applies the Line of Sight Test

Front 6

Interested Witness Rule - MS Purging Statutes:

"I give to my faithful nurse Nell the sum of $30,000." Nell is one of two attesting witnesses to the will. Is the will admissible to probate?

Back 6

Rule - Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy UNLESS:

(1) There were two disinterested attested witnesses (supernumerary rule); OR

(2) Witness-beneficiary would be an heir (or a beneficiary under a prior will) if the current will had not been executed, in which case she takes lessor of (i) amount given in will, or (ii) what she would have taken (by intestacy or under a prior will) had the current will not been executed.

Here, will itself is valid and admissible to probate, but Nell Loses!

Front 7

Oral Wills - Deathbed Utterance

Earl executes valid will leaving all of his personal property to Mary. Subsequently, while Earl is in bed at this home, he tells his minister and two nurses that he wishes to make an oral will disposing of his $500 diamond ring Donald. Shortly thereafter, Earl dies. Who take the ring?

Back 7

Mary

A Nuncupative (oral) will is valid to dispose of personal property of unlimited value, provided:

(1) it is spoken in T's residence during T's last illness (Deathbed Utterance @ Home);

(2) Before at least one person whom T asks to bear witness to his will (not necessary if property worth $100 or less)

BUT - can't use a nuncupative will to modify prior will.

Here, prior will, so Mary takes all. Cannot give effect to the statement.

Front 8

Proof of Wills - Admitting will to probate

Back 8

Testimony of one of the attesting witnesses that the will was attested by two credible witnesses in the decedent's presence and at his request. If all of the witnesses cannot be located or are incompetent, proof of the signatures of the testator and at least one of the witnesses is required.

Front 9

Self-proved Wills

Back 9

Not required - optional but great idea!

At time will is signed by T and attesting witnesses (or some time thereafter, in T's lifetime), T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Thus, will may be admitted to probate without the testimony of either witness. Just turn will over to the court.

Front 10

Holographic Wills - admitting to probate

Back 10

Requires affidavits from two disinterested persons that the will and the signature are in T's own handwriting.

Front 11

Revocation

Back 11

Hypo

In 2006 T properly executed a will in duplicate (2 documents each with original signatures) giving all property to her children. In 2008 she wrote "VOID" on one of the copies of the 2006 will and drew many vertical lines across the front of the one-page document. Will revoked? If so, it was by physical act.

Front 12

Revocation by Physical Act

Back 12

Requires (2 and both are necessary):

(1) intent to revoke; and
(2) physical act.

MS statute refers to "destroying, cancelling, or obliterating." MS case law includes ripping, cutting, mutilating, and burning. Synonyms are sufficient.

Front 13

Sufficiency of Act

Back 13

Hypo facts: Will executed in duplicate (2 executed copies) and one marked out.

Rule = an act of revocation on one executed copy revokes all copies.

Compare: "VOID" written on back of will (or in margin). - NO GOOD.

Rule = to be revoked, must touch some language of the will. If it does not touch any part of will's language, NOT VALID REVOCATION.

Compare: "VOID" written on face of Xerox copy. NO GOOD.

Rule = act of revocation must be done to original/will itself (or executed copy), NOT a picture of the will.

NOTE: Writing "void" is helpful but not critical. Simply drawing lines across with intent to revoke is enough.

Front 14

Revocation Presumptions

Back 14

(1) Will in T's possession from time of execution until death and found in mutilated condition after T's death. Presumption - T did mutilating with intent to revoke.

(2) Will last seen in T's possession and control not found after T's death. Presumption - Reason it can't be found is that T destroyed with intent to revoke.

Front 15

T calls his attorney, the place where the will is located and orders his attorney to destroy T's will. The order is never carried out. Will revoked?

Back 15

No.

Rule = Intent + Act.

Here, we have intent but no act. The will is not revoked.

Front 16

What if the attorney had destroyed the will pursuant to T's order? Would the will have been effectively revoked?

Back 16

No.

Rule = Revocation by another person (Proxy) must be (1) done by T's direction and (2) in T's presence.

Here, attorney is across town - not in T's LINE OF SIGHT.

Front 17

If will is in fact not revoked, how can it be probated given the fact that it has been destroyed?

Back 17

By satisfying the "Lost Wills" Statute.

Front 18

Lost Wills Statute

Back 18

Proponents of the will must establish the contents of the will by CLEAR AND CONVINCING evidence. In addtion, proponents must show:

(1) that the will was validly executed by a competent testator; and

(2) that it had not been revoked by test testator.

Note - practical effect is same as will being revoked if burdens not met.

If proved, apply intestacy statute.

Front 19

Additional Issue where attorney messes up execution or revocation of will:

Back 19

Lucas v. Hamm - attorneys can be sued in negligence.

Front 20

Revocation by Inconsistency

Back 20

Hypo - T's 2002 will leaves Blackacre to X, her diamond ring to Y, and residue to Z. T's 2005 codicil leaves $5,000 to Y an her diamond ring M. Codicil does not expressly revoke earlier will. Who takes what?

Rule = Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together.

But, to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.

Result on above facts:
M: ring, which
Y: revokes earlier gift to Y, so Y gets $5,000.
X: nothing inconsistent - still gets Blackacre.
Z: same analysis but different residue. Give effect to will and codicil.

Front 21

Revocation

Back 21

Hypo

In 2006 T properly executed a will in duplicate (2 documents each with original signatures) giving all property to her children. In 2008 she wrote "VOID" on one of the copies of the 2006 will and drew many vertical lines across the front of the one-page document. Will revoked? If so, it was by physical act.

Front 22

Revocation by Physical Act

Back 22

Requires (2 and both are necessary):

(1) intent to revoke; and
(2) physical act.

MS statute refers to "destroying, cancelling, or obliterating." MS case law includes ripping, cutting, mutilating, and burning. Synonyms are sufficient.

Front 23

Sufficiency of Act

Back 23

Hypo facts: Will executed in duplicate (2 executed copies) and one marked out.

Rule = an act of revocation on one executed copy revokes all copies.

Compare: "VOID" written on back of will (or in margin). - NO GOOD.

Rule = to be revoked, must touch some language of the will. If it does not touch any part of will's language, NOT VALID REVOCATION.

Compare: "VOID" written on face of Xerox copy. NO GOOD.

Rule = act of revocation must be done to original/will itself (or executed copy), NOT a picture of the will.

NOTE: Writing "void" is helpful but not critical. Simply drawing lines across with intent to revoke is enough.

Front 24

Revocation Presumptions

Back 24

(1) Will in T's possession from time of execution until death and found in mutilated condition after T's death. Presumption - T did mutilating with intent to revoke.

(2) Will last seen in T's possession and control not found after T's death. Presumption - Reason it can't be found is that T destroyed with intent to revoke.

Front 25

T calls his attorney, the place where the will is located and orders his attorney to destroy T's will. The order is never carried out. Will revoked?

Back 25

No.

Rule = Intent + Act.

Here, we have intent but no act. The will is not revoked.

Front 26

What if the attorney had destroyed the will pursuant to T's order? Would the will have been effectively revoked?

Back 26

No.

Rule = Revocation by another person (Proxy) must be (1) done by T's direction and (2) in T's presence.

Here, attorney is across town - not in T's LINE OF SIGHT.

Front 27

If will is in fact not revoked, how can it be probated given the fact that it has been destroyed?

Back 27

By satisfying the "Lost Wills" Statute.

Front 28

Lost Wills Statute

Back 28

Proponents of the will must establish the contents of the will by CLEAR AND CONVINCING evidence. In addtion, proponents must show:

(1) that the will was validly executed by a competent testator; and

(2) that it had not been revoked by test testator.

Note - practical effect is same as will being revoked if burdens not met.

If proved, apply intestacy statute.

Front 29

Additional Issue where attorney messes up execution or revocation of will:

Back 29

Lucas v. Hamm - attorneys can be sued in negligence.

Front 30

Revocation by Inconsistency

Back 30

Hypo - T's 2002 will leaves Blackacre to X, her diamond ring to Y, and residue to Z. T's 2005 codicil leaves $5,000 to Y an her diamond ring M. Codicil does not expressly revoke earlier will. Who takes what?

Rule = Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together.

But, to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.

Result on above facts:
M: ring, which
Y: revokes earlier gift to Y, so Y gets $5,000.
X: nothing inconsistent - still gets Blackacre.
Z: same analysis but different residue. Give effect to will and codicil.

Front 31

Additional Revocation by Inconsistency notes

Back 31

(1) Same rule applies when there are two wills and the second does not in terms revoke the first. To the extent possible, the second will is treated as a codicil to the first. There is an implied revocation only to the extent of the inconsistency.

(2) Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not automatically revoke the will. Instead, in absence of contrary intent, it is presumed that T intended his will as originally executed.

Where will and codicil:
Destroy will but not codicil = both revoked

Destroy Codicil but not will = revokes codicil but NOT will.

Front 32

Codicil

Back 32

Amendment to will - has to be executed with same formalities as will.

Front 33

Impact of change in marital status on will

Hypo: T's will devises entire estate "to my wife, Sheila, if she survives me, if she does not survive me in trust for my children." The will names Sheila as personal representative "if she is able"; otherwise X is to serve as personal rep. Two years later, Sheila divorces T; T dies 2 years after that without having revoked or modified his will. T is survived by Sheila, by 2 children and by X. Who takes what? Who serves a personal representative?

Back 33

Sheila (former spouse)

In MS neither divorce nor marriage has any effect on a testator's will. (not true in every state).

Front 34

T's typewritten will made a bequest of "$10,000 to my friend X." Subsequent to the will's execution, T drew a line through the figure $10,000 and wrote above it $5,000. T then signed his name in the margin opposite the change.

Back 34

(a) Has the $10,000 bequest to X been revoked? Yes - by physical act (it was lined through) with intent to revoke. Signature irrelevant.

(b) Can the interlineation ($15,000 bequest) be given effect? NO, unless T reexecutes or republishes will (complying with wills statute)

Front 35

Should Dependent Relative Revocation (DRR) be applied to reinstate the original $10,000 bequest?

Back 35

Rule = DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law if the court is satisfied that, but for the mistake, T never would have made the revocation.

- Mistake REMEDYING doctrine - legal fiction.

Based on previous fact pattern, undo the cancellation of the $10,00 bequest b/c T thought that the interlineation would be effective if court thought T would not have revoke but for mistake.

"BUT FOR" test is key. Also, this only works where "new" gift is larger than the original. If smaller, DRR does NOT apply.

Front 36

Will Revival

Back 36

Issue: Does revocation of will-2 "revive" will-1?

In MS, no. Once a will is revoked, the ONLY way to "revive" is by reexecution or republication. NOT automatic.

Front 37

Incorporation by Reference

Back 37

To incorporate an extrinsic document by reference:

(1) Writing must be in existence at time will was executed.

(2) Will must manifest an intent to incorporate the document.

(3) Will must "describe the writing sufficiently to permit its identification."

Front 38

Doctrine of Independent Significance

Back 38

Acts having an independent lifetime motive are allowed - will not change will because people do not do those things solely to change will.

Examples:
-hire/fire employees (and employs are named generally, not specifically, in will "I give the sum of $1,000 to each person who is in my at my death.")
-buying/selling cars

Front 39

Lapse, Ademption, Exoneration of Liens

Back 39

In other words, things have changed - how to construe will in light of changes.

Front 40

Lapse

Back 40

When beneficiary named in the will dies before T, the gift lapses, UNLESS it is saved by the state's Anti-Lapse Statute.

Front 41

MS Anti-Lapse Statute

Back 41

applies when the pre-deceasing beneficiary is (1) a child or other descendant of T (2) who leaves issue.

This statute applies even if pre-deceasing beneficiary's will leaves all property to someone else. The ALS statute chooses, not the pre-deceasing beneficiary. This is T's money, not the pre-deceasing beneficiary's.

Also, if will makes a specific requirement, then the ALS does not apply. Gift fails according to its terms.

Front 42

Class-Gift Rule

Back 42

When there is a gift by will to a group of persons generically described as a class ("children," "nephews" and nieces," etc.) and some class member predeceases the T and the lapse statute does not apply, the surviving class members take.

*ALS may apply.

Front 43

Class-Gift Hypo

"I devise Blackacre to the children of my good friend, John Bates; I leave the residue of my estate to X." At the time T executes his will, John Bates has three children: A, B, and C. Thereafter, during T's lifetime, Bates has another child (D), and his son A dies leaving a child (A, Jr.) Then, T dies; he is survived by John Bates; by Bates' three children, B, C, and D; by Bates' grandchild A,jr. and by X.

Back 43

Who takes Blackacre? B, C, and D split Blackacre equally (Bates' children at T's death). ALS statute does not apply b/c the gift is not to T's child or descendant, but to the children of a friend. Therefore, under the Class Gift Rule, only the surviving members of the class take which leaves A and A, Jr. out.

What if in the above example, the gift were to the children of my SON John Bates? now back under ALS, so B,C,D AND A,Jr. share.

Front 44

Hypo:

I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my companion Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates, by Carter and by a child, Chuck. Who takes the residuary estate?

Back 44

1/3 each to Bates, Carter, & Chuck by intestacy.

(lapse occuring in residue itself)

Rule = If the residuary estate is devised to two or more persons and the fit to one of them fails for any reason, the failed share does not pass to the other residuary beneficiaries. Instead, it falls out of the will and passes by intestacy.

What if Alan Andrews had been T's child instead of a friend? brings us back under MS's ALS statute = 1/3 each to Bates, Carter (rem) & Alan, Jr. under MS.

Front 45

Specific Devise or Bequest

Back 45

Specific, Identifiable Asset:

"I devise Blackacre [or my 2002 Cadillac] to my son John."

"my car" and "all of my bank accounts"

Front 46

Demonstrative Legacy (hybrid)

Back 46

General Legacy with funding instructions

"I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah."

Front 47

General Legacy

Back 47

Gift of a pecuniary amount/sum

"I give the sum of $10,000 to my daughter Donna."

Front 48

Residuary Bequest

Back 48

the rest

"I give all the rest, residue, and remainder of my property to my my wife, Agnes."

Front 49

Intestate Property

Back 49

When there is a partial intestacy for some reason (e.g., all of the residuary beneficiaries predecease T, and the case is not covered by the ALS).

Front 50

Abatement

Back 50

When T's estate is partially insolvent? In what order the gifts sacrificed to satisfy funeral expenses, expenses, expenses of administration, creditors' claims?

Start with Intestate property and work up (residuary, general, demonstrative, then Specific)

Front 51

Ademption

Back 51

When a SPECIFIC gift in T's will is no longer part of T's estate.

Gift is adeemed - person takes nothing.

Note - If gift is not specific, it cannot be adeemed.

For demonstrative gift - simply fund from other sources.

Front 52

Stocks

Back 52

Splits - beneficiary gets all shares

Dividend = beneficiary gets only original shares

"my" becomes relevant for ademption (when shares not there) - specific adeemed.

Front 53

"Exonerate the lien"

Back 53

where gift passes free and clear of the encumbrance - beneficiary is entitled to exoneration unless will otherwise provides.

Front 54

Ambiguities and Mistakes

Back 54

Latent Ambiguity
- looks fine on its face but problem comes when you try to apply will (To X, X does not exist)
- Clarifying Extrinsic Evidence is admissible to clear up a latent ambiguity
- In absence of clarifying evidence, gift fails, falls to residue.

Where there is no ambiguity (Will says to X and X exists), then Plain Meaning Rule dictates that the court will not disturb the plain meaning of the will with extrinsic evidence - not admissible.

Note - Court will NOT fill in blanks of T's will.

Front 55

MS Intestacy Rules

Back 55

- Decedent Survived by Spouse
- Decedent NOT Survived by Spouse

Front 56

Decedent Survived by Spouse

Back 56

(1) If survived by spouse but no descendants (children, grandchildren, etc), then spouse takes EVERYTHING.

(2) If survived by spouse and one or more descendants, then spouse takes a child's share that is equal with other children.

(3) So long as decedent is survived by spouses or lineal descendant, parents and collaterals NEVER take.

Front 57

Decedent NOT Survived by Spouse

Back 57

(1) All to descendants, if any.

(2) If no descendants, to parents and siblings (brothers and sisters) in equal shares with descendants of deceased siblings taking by representation.

(3) If none of the foregoing, then to grandparents, uncles and aunts in equal shares. NO REPRESENTATION.

(4) If no surviving relative, escheat (to state of MS).

NOTE - You cannot disinherit your heir by fiat. Meaning, if there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will.

Front 58

Mississippi - Issue take per strict stirpes

Back 58

1 share for each line of descent emanating from it.

Whole blood is favored over half-blood.

Front 59

Probate Estate

Back 59

The intestacy statute only applies to the probate estate. This is the estate that could have been controlled by a will had the descedent executed one. It does not include:
- property passing by Right of Survivorship
- property passing by contract (life insurance, employee plan death benefits);
- Bank accounts or securities titled in POD (payable on death) or TOD (transferable on death) form
- Property held in trust (including a revocable trust - passes according to the terms of trust instrument)
- Property over which the decedent had a power of appointment (mainly trusts).

Front 60

Disclaimer or Renunciation

Back 60

Not required to accept gifts

An heir or will beneficiary can DISCLAIM his or her interest in (1) writing, (2) before acceptance, and (3) within 9 months after decedent's death. Disclaimer, which can be total or partial, results in property passing as though disclaimant predeceased decedent (lapse). Disclaimer can be made by guardian of minor or incompetent, or by personal representative of a deceased person.

Front 61

Inheritance Issues - Out of Wedlock Children

Back 61

Child can always inherit from mother.

Can only inherit from putative father if:

(1) Putative father marries the mother before child's birth (even if marriage void);

(2) Putative father marries the mother after child's birth AND acknowledges paternity; or

(3) There is an adjudication of paternity before or after putative father's death. (If after death, paternity must be established by clear and convincing evidence in a proceeding brought within the earlier of one year of death or 90 days after first publication of notice to creditors.)

NOTE - none of the above will permit the father and father's kin to inherit from the child UNLESS father has openly treated the child as his AND has not refused to support the child.

A child cannot inherit from a step-parent UNLESS the step-parent adopts (then treated as normal adoption.)

Child can inherit from adopted parents their ancestors, and other children (adopted parents can also inherit from the adopted child).

NOTE - an adopted child can inherit from natural parent but NOT vice versa.

Front 62

Whole blood vs half-bood

Back 62

In MS, whole blood takes to the exclusion of all others in same degree of relationship.

Front 63

Simultaneous Death Act (SDA)

Back 63

When passage of title to property depends on priority of death and there is INSUFFICIENT evidence that the persons have died otherwise than simultaneous (we can't tell), absent a will provision to the contrary, the property of each person passes as though he survived:

Wills - as though T survived; as though beneficiary predeceased (generating lapse and potential ALS application)

Intestacy - as though intestate survived and heir predeceased

Insurance - as though insured survived; as though beneficiary predeceased

JTWROS - 1/2 as though tenant A survived, 1/2 as though tenant B survived. The point: simultaneous death prevents operation of right of survivorship - so 1/2 passes through each tenant's estate (treat as tenancy in common).

IN MS - if ANY evidence, SDA does not apply.

UPC - 120 hour rule requires heir to survive for 120 hours (5 days) in order to take as an heir or a beneficiary of a will (not MS rule).

Front 64

Lifetime Gifts &

Doctrine of Satisfaction

Back 64

Intestacy (MS and common law) - Any lifetime gift to a child (including adopted) is presumed to be an advancement (advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate. - bring back into hotchpot.

Wills (testate estates) - similar doctrine known as SATISFACTION applies to testate estates. A lifetime gift is presumptively treated as an advance payment of the donee's interest under donor's will.

Front 65

Rights of Surviving Spouse

Back 65

(1) Right to Exempt Property, Family Allowance, and Homestead

(2) Right of Renunciation

Front 66

Surviving Spouse's Right to Exempt Property, Family Allowance, and Homestead

Back 66

(1) Exempt property - Surviving Spouse (SS), or if none, the minor children, are entitled
(a) $10,000 worth of household goods, wearing apparel, books, motor vehicles, and trade tools as well as
(b) a portion of the decedent's wages, and
(c) up to $50,000 of insurance proceeds on policies paid to the decedent's estate.
These items are IN ADDITION to the family allowance and homestead right (see below) and are exempt from creditors' claims.

(2) Family allowance - SS and minor children who the decedent was supporting are entitled to a reasonable money allowance for their maintenance for up to a year. This allowance takes precedence over creditors' claims.

(3) Homestead - If SS ends up with any ownership interest in the homestead after the decedent's death, the spouse is entitled to exclusive use and possession of the entire homestead until death or remarriage. Homestead is limited to 160 acres not to exceed $75,000 in value.

Front 67

SS's Right to Renunciation (i.e., to claim legal share)

MS version - Elective Share Statute

Back 67

A SS of a testate decedent (will) is entitled to claim a "legal share" of the decedent's probate estate.

(1) The legal share is entitled to the spouse's intestate share of the probate estate, not to exceed 1/2 of the probate estate. Note that it is a share of the "probate estate." It does NOT extend to nonprobate transfers such as property passing by right of survivorship, insurance proceeds or property held in trust at the decedent's death.

(2) If the surviving spouse's "separate estate" is more than 1/5 of her legal share, the spouse must reduce the legal share by the value of her separate estate.
- the SS's "separate estate" includes all property owned by the SS less existing debts. This includes property owned with the decedent as joint tenants and any insurance proceeds payable to the SS.
- No reduction in the spouse's legal share is necessary if the spouse's separate estate (see above) is LESS than 1/5 of her legal share.

(3) If the decedent's will OMITS the spouse ENTIRELY, the decedent's will is RENOUNCED by operation of law (automatically). Otherwise, the spouse MUST file a renunciation statement within 90 days after the will is admitted to probate. The right to renounce may be exercised by a guardian of an incompetent person (with court approval) but NOT the personal representative of a deceased spouse.

Front 68

Pretermitted and Omitted Children

Back 68

A pretermitted child is a child born or adopted AFTER will is executed and is entitled to take an intestate share (had there been no will at all) UNLESS

(1) Provision is made for the child in T's will; or

(2) It appears from the will that the omission was intentional. (express "not my intent to provide for ANY of my children after death")

Note - no relief for mistake in inducement to make or not to make provision in will unless both mistake and what would have been done but for the mistake appear in terms of will.

Note - always remedy for fraud (constructive trust)

Front 69

Doctrine of Republication by Codicil

Back 69

A properly executed codicil re dates will to the date of the codicil (in other words, reaffirms and ratifies previous will but with valid changes made by codicil).

Front 70

Conduct barring party from sharing in the estate

Back 70

Desertion - A SS forfeits inheritance rights if he/she engages in conduct that clearly constitutes a desertion or abandonment of the marriage (includes bigamy but not adultery).

Homicide - A person who willfully (intentional killing) causes or procures the death of the decedent is NOT entitled to any benefits from decedent's estate by will, by intestacy (including family allowance, exempt property, and homestead), under life insurance contract or otherwise. Property passes as if killer predeceased decedent. JTWROS property passes half to killer and half as if killer predeceased decedent. (Generates Lapse, potential app of ALS)

Front 71

Advance Healthcare Directives - Durable Healthcare Powers

Back 71

A durable healthcare power is an instrument one person ("the principal") uses to appoint an agent to make healthcare decisions for the principal, such as giving consent to medical treatment, accessing principal's medical records, and admitting or discharging from a healthcare facility. The power DOES NOT become operative UNTIL the principal loses capacity.

Execution - Must be (1) in writing, (2) dated, (3) signed by the principal or by another at his direction, and (4) be signed by two adult witnesses or be acknowledged by a notary.

Revocation - Unless otherwise stated in the power, by written or oral notice of revocation to either the agent or the principal's healthcare provider. Also, automatically revoked by the execution of a later durable healthcare power.

Liability - Agent is NOT civilly or criminally liable or subject to discipline for unprofessional conduct for healthcare decision made in good faith.

Front 72

Will Contests

Back 72

Scope - Will contest proceedings stand alone. No other issue may be addressed by the court other than the validity of the will.

Standing - Any person whose share of the estate would increase were the will contest to be successful (will declared invalid).

Reasons to Contest:
(1) Lack of Testamentary Capacity
(2) Undue Influence

Front 73

Lack of Testamentary Capacity

Back 73

Burden of Proof to make out prima facie case of capacity is on will proponents; then burden shifts to contestants (fighting will).

The test:
(1) Did T understand the nature of the act he was doing?
(2) Did T know the natural objects of his bounty?
(3) Did T understand the disposition he wished to make? practical, not legal

If any answer to any of these questions is no, then T LACKED testamentary capacity. Very low standard.

Evidence of T's capacity or lack of it must relate to the circumstances at the time the will was executed. More distant in time, less significant.

Mere old age, physical frailty, sickness, failing memory, or vacilating jdugment are not inconsistent with testamentary capacity if the testamentary prerequisites (test) were possessed by T.

A person who has been adjudicated insane or incompetent does not necessarily lack testamentary capacity. Moreover, evidence that a conservator or guardian has been appointed is inadmissible in a will contest.

Front 74

Insane Delusion

Back 74

A distinctive form of testamentary capacity: Where T is otherwise sane (3-prong capacity test satisfied), but the will (or a gift int he will) is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and eviden, and where the will (or gift in the will) is the product of the insane delusion. Will or gift in the will invalidated.

Front 75

Undue Influence

Back 75

Burden of proof is on contestants (different from LTC), who must show (all 3):

(1) Existence and exertion of the influence.
(2) Effect is to overpower the mind and will of T.
(3) The result is a will that would not have been executed but for the influence.

Influence is not undue unless the free agency of the T was destroyed and a will produced that expresses the will not of the T but of the one exerting the influence. [difficult "but for" test]

While evidence of undue influence is usually circumstantial, the following standing alone are not enough:
(1) Mere opportunity to exert influence (access to T over a period of time).
(2) Mere susceptibility to influence due to illness, age. Such evidence does not by itself establish that T's mind was in fact subverted and overpowered.
(3) Mere fact of "unnatural disposition" - that some children take less than others or are excluded entirely. It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of undue influence.

Undue influence may be shown as to the entire will, or as to one gift in the will.

In MS and many states, a presumption of undue influence arises upon a showing that a principal beneficiary under the will who stands in a "confidential relationship" to T draws or procures the execution of the will.
- Attorney/client
- Priest/parishoner
- Doctor/patient

Suspicious circumstances may also tend to show undue influence. E.g., relative stranger insinuates himself with T when T, because of mental or physical condition or age is susceptible to influence, and T then writes will that disinherits children.

Front 76

"In terrorem" Clause

Back 76

Will includes this clause: "Any person who contests this will shall forfeit his legacy." Son contests based on undue influence. What is the effect of in terrerom clause on son's claims? If son contests, no problem. Bad if he loses, however.

Rule (MS and majority) = clause will not be enforced against contestant as long as he has probable cause for contest. Public policy - we want son to come forward without fear. Can't be frivolous; must have standing.

Front 77

Estate Administration

Back 77

- Jurisdiction
- Venue
- Appointment of Personal Representative
- Creditors' Claims
- Claims Priority

Front 78

Jurisdiction of Probate/Administration Matters

Back 78

(MS) Jurisdiction over all probate and administration matters is in the chancery courts. Probate administration in MS takes either of two forms:
(1) common form is an ex parte (informal) proceeding before the chancery court CLERK. No notice is given. Hence, the proceeding is not binding on others. They may contest the will for 2 years after probate.

(2) Solemn form is a formal proceeding in Chancery with Notice to all interested parties. This proceeding is binding on all parties receiving notice.

Front 79

Venue

Back 79

Venue lies in the county of T's residence, or if none, where devised land is located, or if none, where T died or where bequeathed personal property is located.

Front 80

Appointment of Personal Representative

Back 80

The personal representative does NOT have to be a MS resident (many states do require). Statutory priority for appointment is:
- First to person name in will.
- Then to decedent's spouse.
- Then to any will beneficiary.
- Then to a Mississippi trust company or a national bank.
- Then to a creditor or other suitable person.

Front 81

Creditors' Claims

Back 81

ONe of the first duties of the personal representative is to publish notice to creditors (once a week for three consecutive weeks). Thereafter, all liquidated claims are barred, unless they are probated within 90 days after the date of the first publication (same as renunciation of will).

EXCEPTIONS:
- known or reasonably discoverable creditors (must send actual notice to them)
- Claims by secured creditors (they may still proceed against the security interest - may not can get deficiency judgment)
- Nonliquidated claims

Front 82

Claims Priority

Back 82

If the assets of the estate are not sufficient to pay all creditors, then claims are paid in the following order (with exception of SS's rights which take precedence to creditors' claims):
- Expenses of last illness, including hospital
- Funeral expenses (want person to be buried)
- Administration expenses, including attorneys fees
- All other claims (general)

Front 83

Bequest/Legatee

Back 83

traditional language

act of receiving PERSONAL PROPERTY by will

Person receiving the bequest is called the legatee.

Front 84

Devise/Devisee

Back 84

traditional language

act of receiving REAL PROPERTY by will

Person receiving the devise is called the devisee.

Front 85

Other language

Back 85

beneficiary
donor/donee

Front 86

heir

Back 86

inheritance (no will) - intestate term.

NOTE - only have heirs when you die. Otherwise, prospective heirs. Living people do NOT have heirs.