Wills and Trusts
Prof. Gillett
I. Introduction to Estate Planning
A. The power to transmit property at death
1. Wills, testaments, rights of inheritance, and successions are all created by law
and can be limited, condition or abolished by legislatures
2. Hodel v. Irving
a. Congress passed law limiting rights of inheritance to Indian lands in order
to prevent fractional interests from passing
b. The S.Ct. found that the statute was unconst. B/c it did away with the right
to pass property to heirs. (Abolished the rights of descent and devise)
c. S.Ct. looked to 3 factors to determine if it was “taking” of land:
Economic impact= high
Interference with reasonable investment backed expectation=none
Character of gov’t action=right to pass to heirs is important
d. The statute could have limited the right to pass by intestacy just not by
both will and intestacy
B. Transfer of the decedent’s estate
1. General definitions
a. Testator = person writing the will
b. Testate = die with a will
c. Executor = takes care of will
d. 2 kinds of gifts:
Devise = real property
Bequest = personal property
e. Executor = named in the will
f. Administrator = not named in the will; statute creates first order of
preference
2. Probate/Non-Probate Property
a. Probate
Passes under will or by intestacy statutes
Principal reason to probate property is to clear title
Can probably limit passing of property in a will by stating that
someone must marry, but probably can’t preclude something from
passing b/c someone marries.
In a will, you can require things of grandchildren or other heirs, but
probably not spouses
b. Non-Probate
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Passes through another instrument effective before death
Joint tenancy property
Life insurance
Contract with payable upon death provision
Interests in trust
Advantages of a revocable trust
If person becomes incompetent, then trustee can manage
property
Much easier to distribute property to beneficiaries
No attorney fees
Not public documents
Saves probating on land in other states
Disadvantages
Attorney’s charge more
More administrative costs
Must file income tax returns for trust
More difficult to deal with property during life
Will not save on taxes
3. Process of Probate
a. Admit to probate
b. Certain persons can contest
58 O.S. § 41: Proceedings on contest
Must file written notice as to reasons for contest
Can allege the following issues of fact: competence of
decedent, freedom from duress, etc., proper execution and
attesting, an other questions substantially affecting the validity
of the will
58 O.S. § 61: Causes for contesting a will after probate
any person can contest the validity of a will within 3 months of
the date the will was admitted to probate
must allege either: discovery of a will dated later than the one
in probate, some jurisdictional fact was lacking, that the
testator was not competent, was under duress, menace, fraud or
undue influence or that the will was not properly executed and
attested
c. appoint representative; this person will:
Collect assets
Inventory property
File inventory with the court
Conserve assets for distribution
Pay the debts
Pay taxes (they become personally liable for estate and income
taxes)
Account to court and make distribution
4. Duties of attorney in drafting a will
a. Simpson v. Calivas
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Action brought against atty who drafted father’s will
I: does atty. have a duty to intended beneficiaries?
H: yes, based on foreseeability of the injury, not on the privity of
relationship
Contestant must show that the atty negligently failed to effectuate the
testator’s intent as expressed to him
Most of the time, the court is bound by the “4 corners of the will” unless
the will is ambiguous, then extrinsic evidence (except the clearest
example) may be used
Judgment of probate court did not create estoppel b/c true intent of
testator was not decided
b. Hotz v. Minyard
Father writes 2 wills and requests that atty only show 1st will to
daughter (who is also client of atty)
Daughter beings suit for breach of fiduciary duty b/c atty did not
show her the correct will when she asked to view will
Court said that b/c of “special confidence” relationship, atty owed
her a duty to correctly represent the will
II. Intestacy: An estate plan by default
A. Basic Scheme
1. the law of domicle governs personal property
2. the law of location govern all real property
3. Numbers to remember
$675, 000 = amount you can give w/o estate taxes
$675,000 = amount you can give to descendants w/o state taxes
This amount is the gross amount, which includes things that do not pass through
probate (life insurance)
$10,000 = amount that you can give per year, per beneficiary w/o incurring
federal gift taxes
4. 84 O.S. § 213(B): (p.45 in supp.) governs who gets what if person dies intestate
§ 213(B)(1): applies when the decedent leaves a surviving spouse
§ 213(B)(2): applies when there is no surviving spouse and tells what property
goes to others after spouse’s share
5. Joint industry property:
Property given to you by your parents is separate, unless it is commingled or it
can no longer be traced back to the gift
All property acquired during marriage is joint
Upon death, W gets ½ of JIP that H has (not ½ of what the total is)
Things, such as joint tenancy property, that pass outside of probate, don’t count
towards the ½
B. Share of surviving spouse
1. If marriage is invalid then, not spouse, but if divorce is pending, you are still spouse
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2. Spouse must survive decedent and the person whose claim depends upon survivorship
must show it by a preponderance of the evidence
In Okla. the Uniform Simultaneous Death Act means that if there is no sufficient
evidence of survivorship, the spouse is deemed to predecease.
The USDA, requires survivorship of 5 days now; Okla. has yet to change the law
Janus v. Tarasewicz: Mom of H tried to claim that death was simultaneous so
that she would inherit W’s share of H’s estate;
Here, W’s dad must show that W survived H in order to get her share
2 standards can be used to determine death: irreversible cessation of
circulatory and respiratory functions or a brain death standard
Ct. here applied both and found that b/c functions of W resumed on their
own after H was dead, she had survived.
C. Shares of Descendants
1. children and issue of children take remainder after spouse’s portion is set aside
2. Issue of children “represent” the dead child and take their share; 2 ways to
divide:
Strict per stirpes: divide property into as many shares as there are living
children of the designated person and deceased children who have
descendants living (always divides at child level)
Modern per stirpes: divide shares at level where descendants are still
living; Okla. uses this
3. Disinheritance
In order to disinherit a child, you must dispose of ALL of your property;
otherwise the remainder will pass by intestacy to that child
D. Shares of Ancestors and Collaterals
1. Collateral kindred = persons related by blood but not descendants or ancestors
1st line collaterals = descendants of deceased’s parents (excluding
deceased and his issue), i.e. deceased’s siblings
2nd line collaterals = descendants of deceased’s grandparents (excluding
deceased’s parents and their issue), i.e. deceased’s aunts and uncles
If there are no 2nd line, then two schemes are used: parentelic, which
distributes it back through grandparents; and, degree-of-kinship, which
counts steps for each generation and the closest one gets it (chart on p.92
of book). Okla. uses the degree-of-kinship system
E. Relationships by half-blood
1. 84 O.S. § 222: half and whole siblings inherit equally, UNLESS there are
specific items which came from ancestor (applies mainly to real estate)
F. Transfers to Children
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1. Posthumous children 84 O.S. § 228: considered living at the death of their
parent; see also 10 O.S. § 2 for presumption that children born 10 months after
death of parent are presumed to be that parents child
2. Adopted children 10 O.S. § 7505.65: can inherit through and from adoptive
parents; natural parent can’t inherit from a child who has been adopted, but in
Okla. an adopted child can still inherit from natural parents as well as from
adoptive parents (minority rule)
Hall v. Vallandingham
Brother of children’s natural father dies
I: can they take b/c they’ve been adopted by their step-father?
H: court here says no b/c statute allowed inheritance from and
through adoptive parents
This case would be different in Okla.
3. If child is born out of wedlock, most states allow inheritance with proof of
paternity;
84 O.S. § 215 (p. 46) provides that the father/child relationship must be
established during father’s life
4. Adopting an adult child usually works for purposes of inheritance and prevents
will contests by family members for gifts given in will to persons not in family
5. Advancements 84 O.S. § 223-227(p. 47): all advancements given during the
life of the decedent count against that child’s share after death.
The amount of the advancement is added to the total estate and then the
estate is divided into equal shares; the advancement is subtracted from that
child’s share
If advancement is more than the value of the estate, the child doesn’t get
anything, but no refund is required
The gift is measured by the value at the time that it was given, except that
the donor can place his or her own value on it (not required to be
reasonable)
Child has the burden of establishing that the gift was not an advancement,
but was just a gift
6. Transfer of expectancy
Living persons only have heir apparents
These persons have an expectancy, not a property interest
However, purported transfers for adequate consideration may be enforceable
in a court of equity
7. Managing a minor’s property
A custodianship or trust can be established by will if parents are alive
Guardianship: costly b/c actions require court approval, only the income
from the estate can be used
Custodianship: transferred to person as custodian for minor’s benefit,
fiduciary duties apply, and good for small gifts
Trust: gives property to minor at a set age and can be controlled
If you have children, the best thing to do is to write a will naming a guardian
and establishing a trust for your children
In Okla., you can transfer to an UGMA but you can’t establish a trust (????)
G. Bars to Succession
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1. In re Estate of Mahoney
W was convicted of manslaughter
The probate court awarded the estate to H’s parents on the theory that the
slayer predeceases the spouse
I: may widow convicted of manslaughter inherit estate
Without a statute on point, courts will normally do 1 of the following:
Legal title still passes to and remains with the slayer
No passing of legal title b/c person should not profit from own
wrong doing (estate goes to other heirs)
Legal title to slayer as a constructive trust and property must be
conveyed to heirs or next of kin
This court held that intent was not a requirement, so voluntary manslaughter
is the same as murder
2. Note that b/c slayer is deemed to have predeceased, issue of the slayer can still
take inheritance
3. If property is held in joint tenancy, the deceased person’s share will pass to heirs
4. 84 O.S. § 231 (p.47): requires conviction, except for proceeds of life insurance
policy; the statute suggests that estate will pass to other heirs
5. If person is acquitted in criminal case, the court can still look to see if spouse
could be guilty by preponderance of the evidence
6. If convicted, it can be relitigated in civil court for the insurance proceeds; must
claim that the person feloniously, intentionally, and unjustly took the life
H. Disclaimer
1. You generally have 9 months
2. Person disclaiming is treated as having predeceased and therefore pays no
transfer taxes
3. It helps to avoid creditors, but it does not prevent federal tax liens from being
collected
4. Troy v. Hart
Man is in nursing home and is on Medicaid
His sister dies and the other sister has him sign a disclaimer to his share of
the estate
Law requires that if your financial situation changes while you are on
assistance, you must notify them
I: could he disclaim his share?
H: yes, but it is treated as if he accepted for purposes of qualifying for
benefits, so he gets kicked off
Here, man was dead so his estate was responsible for paying back money to
gov’t
In Okla. it is a crime to get rid of your assets in order to qualify for
assistance 84 O.S. § 22-31 and 60 O.S. § 751, et seq. (gifts)
III. Wills: Capacity and Contests
A. Mental Capacity: why require? Reasons usually given:
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1. Will should represent the true desires of the testator
2. Mentally incompetent persons are usually not regarded as “persons” under the law
3. Protection of the decedent’s family
4. Protects persons from exploitation
5. Assures persons that their “sane” desires will be carried out
6. Public acceptance requires laws to be legitimate, which can’t exist unless decisions
are reasoned
7. Protects society from irrational acts
B. Test of mental capacity
1. Must have ability to know:
The nature and extent of property
The persons who are the natural objects of bounty
The disposition they are making
How these elements relate so as to form an orderly plan of the disposition of
property
2. Requires only a window of sanity in which will was written
3. The person trying to set aside has the burden of proving insanity
4. Persons under a conservatorship can still make a will, but in Okla. it requires a
judge’s signature 84 O.S. § 41 (p. 37)
5. Note too that the standard of mental capacity is lower to get married than it is to make
a will
6. Drafting a will for someone who is incompetent is a breach of duty
There is a strong argument that you are not in a position to decide person’s mental
capacity, but if you are in doubt document evidence, consider getting a medical
opinion and have another person in your office sit in on all meetings with client
Using a video camera is probably not a good idea b/c people tend to act
differently in front of them anyway
C. Insane Delusion
1. Only parts affected by the delusion will be set aside
Defined as: an idea that the testator adheres to despite evidence to the contrary
2. In re Honigman
H left the minimum amount to w b/c he thought that she was having an affair
The person objecting to the will must present evidence of testator’s mind and
proponent must show basis for the delusion
It only requires that the delusions MIGHT have affected the distribution
3. Delusion v. Mistake
Mistakes are correctable if testator knows the truth
Court usually will not reform or invalidate a will b/c of mistake
Example: testator mistakenly believes that her son is dead and she leaves all her
estate to her daughter in will; if the son is really alive, the will is still valid
D. Undue Influence
1. Factors to consider:
Were they susceptible
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Did the influencer have the disposition and was there an opportunity to influence
The disposition of the property was a result of that influence
2. Lipper v. Weslow
Grandmother disinherited child of deceased son
They claimed that the other son, who drafted the will, exercised undue influence
over her
Test: whether such control was exercised over the mind as to overcome her free
agency and fee will and to substitute the will of another
The court here said that the will should stand as written, but this is a questionable
result
3. Burdens of Proof: the rule that is often applied is that where a person in a confidential
relationship receives the bulk of the testator’s property from a testator of weakened
intellect, the burden shifts to the person occupying the confidential relationship to
prove the absence of undue influence
4. Only portions of the will that are affected will be tossed out unless the contest in b/c
of mental capacity, then the whole will is tossed out
5. If there is a question as to why someone is left out, it is better to just put a letter in
your file, rather than in the will; wills become public documents and you can still
liable someone in your will
6. No-contest clauses are usually enforced unless the person contesting has probable
cause. However, in Okla. they are usually upheld regardless
7. Anyone who would benefit from the contest can challenge a will
8. If undue influence affects a pre-residual gift, the bequest passes to other heirs.
In Okla., the part set aside still passes through laws of intestacy, so if a child
exercise undue influence, he may still be able to inherit
9. Bequests to Attorneys
Courts will look at: confidential relationship and participation in the drafting
This creates the presumption of undue influence which shifts the burden to atty to
show that there was none
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RPC 1.8 : can’t prepare a will giving a gift to yourself unless you are related to
the person that you are preparing the will for; this includes gifts to persons that
the lawyer is related to as parent, child, sibling or spouse
In re Moses
Woman had will prepared by another atty and gave her estate to her
boyfriend who was also her atty.
There was no evidence that he knew of the will at all
The boyfriend was required to show that she had received “independent
advice” in the drafting of the will
Court said she did not b/c the atty writing the will only asked a few
questions
The burden shifted to boyfriend b/c it was easy to show the confidential
relationship
In Okla. it would not have shifted b/c you are required to show the
relationship AND participation in the drafting
10. If there is a high risk of undue influence:
Discuss possibilities and realties of disinheriting heirs
Discuss out of presence of potential influencer
Write a letter explaining they are favoring non-related persons
Tell witnesses
Have them write memo to you and make sure that the specific instances they ste
to are accurate
E. Fraud
1. Occurs when the testator is deceived and does that which they would normally not do
(if other reasons for the bequest exist, it often won’t be set aside)
Must be a false statement
Of material fact
That deceived the testator and caused he or she to act
2. Must be done with both the intent to deceive and the purpose of influencing the
disposition
3. Court can probate the will and then impose a constructive trust
4. Okla. follows the majority test which is: would will have been changed BUT FOR
the fraud? (proof of this is hard)
5. 2 types of fraud;
fraud in the inducement
fraud in the execution
6. If the whole will is revoked, the 1st will is valid again (revocation clause in 2nd will
gets revoked too)
7. Latham v. Father Divine
Cousins of deceased claim that Father Divine prevented Mary from revoking her
1st will and drafting a 2nd which would have named them as beneficiaries
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There was also a separate will contest filed by her heirs in which Father Divine’s
share was reduced, but the cousins were not heirs so they could not take in that
suit. Fraud can be claimed even if you don’t have standing in probate court.
Problem here is that the court was asked to decide about a will that was never
written
For equity reasons the court imposed a constructive trust
8. Fraud actions will not expire as soon as will contest
F. Tortious Interference with Expectancy
1. Involves conduct such as fraud, duress, or undue influence
2. Requires proof that BUT FOR the interference the person would have inherited
something
3. Some courts require you to exhaust all remedies in probate court first, which could
still bar other suits.
4. Usually not a problem if there is a no contest clause b/c tortuous interference is not
considered a contest
IV. Wills: Formalities and Forms
A. Execution of Wills
1. Attested wills
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43 O.S. § 55 p. 40 requirements
Signed at end
Signed in front if /acknowledged/to by witnesses
Must declare that it is a will
2 witnesses must sign in testator’s presence
If you add language in (a) or (b) it becomes self-proving (no witnesses
required, but still must be singed by testator)
In re Goffman
W contests the way that the will divides property and seeks to have it
thrown out as invalid for failing to comply with the Statute of Wills
The witnesses did not sign in the presence of one another and the testator’s
signature was not acknowledged to both of them at the same time
Statute of Wills requires: signed/acknowledged in front of witnesses, both
be present at the same time, and they must sign in front of the testator
H: both witnesses must see the signature and acknowledge it at the same
time
In Okla. under 84 O.S. § 55, there is not a requirement that both witnesses
acknowledge the signature at the same time (Goffman will would be valid)
Reasons for formalities of the Statute of Wills
Ritual = impresses upon testator the significance of his actions
Evidentiary = increases reliability of proof in court
Protective = protects testator from undue influence
Requirement of “presence” has different meanings 84 O.S. § 55 (1), (2) and (4)
Line of sight = can the testator see the witness and the fact that they are
signing the will
Conscious presence = more liberal and is probably the test in Okla.; asks
whether the testator could tell that the witnesses was signing the will
through the use of sight, hearing or general consciousness of events
Order of signing
Testator signs first
Witnesses do not have to sign at the same time or in the presence of one
another, but must sign in the presence of the testator (not valid if signed
after testator’s death)
If person can no longer sign their name, signing a symbol such as an “X”
will be valid
Someone can also sign of behalf of the testator; make sure that the
testator’s name is signed and then put “by …” according to 84 O.S. § 56,
the person signing for the testator should also be a witnesses to the will
You can help someone sign his or her name, but it looks better if they ask
for help before you help them
A rubber stamp is not valid
What is the end of the will?
Two tests” physical end or the logical end (used in Okla.)
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If changes are added later, sign those to in order to make sure that hey are
valid; if they are witnessed too then there is no problem, if they are dated
and signed then they would become holographic
The original will can still be valid even if the changes are thrown out
In Okla. there is a publication requirement which means that the witnesses must
know that they are signing a will
Must have competent witnesses (they can’t be beneficiaries to the will unless
there are two others who sign who are not)
Estate of Parsons: disclaiming your share does not make you a
disinterested witnesses b/c the disclaimer relates back only to the point of
when you got the gift, not to the signing of the will
The will is still admitted to probate, the gift to the interested party is
thrown out and the witnesses is not prevented from taking by intestacy or
by a previous will
84 O.S. § 143
84 O.S. § 144: possible that this only applies to INTESTATE heirs
2. Self-proving wills 84 O.S. § 55
1st way =Execute in accordance with statute (acknowledge)
2nd way = special attestation clause (include in all wills)
3. Safeguarding wills
Concern that it is solicitation of business
Always give the client the option of taking the will with them
The burden is high to probate a will that is lost and the presumption is that it was
revoked
There is also the option of depositing the will with the court 84 O.S. § 81 and 82
In re Pavlinko’s Estate
W and H signed the wrong wills
Attempt to probate H’s will
Court says that there are too many changes that would have to be made, so
it is not admitted to probate
Doesn’t meet the requirement of being signed at the end by the testator
In Okla., Elias might be able to use 84 O.S. § 174 and would also have a
claim of malpractice against the atty
Other courts have looked at this same problem and have taken both wills
into account to determine testamentary intent and found the wills valid
Testamentary intent
Intend to dispose of property
Disposition is to be upon death
This is the document to accomplish that objective
4. Holographic wills 84 O.S. § 54
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Requirements
Dated with the day, month and year
Signed (anywhere)
ENTIRELY written by the testator
Easy to change
Requires testamentary intent
The only reason for the statute of wills that is satisfied here is the evidentiary
requirement
In re Estate of Johnson
Testator had filled in a pre-printed will form with certain handwritten
provisions
Was not witnessed at the end
Court held that you must show that the hand writing expressed intent so
this will was not valid
In Okla.: no question that it would be invalid b/c a HW must be
ENTIRELY in the testator’s handwriting
Kimmel’s Estate
Father wrote a letter to his sons and gave them his property “if anything
should happen to me’
Court held that these were words of disposition and they were determined
to me “if I die”
The fact that the father was sick was viewed as an inducement for making
the will
B. Revocation of wills
1. Revocation by Writing or Physical Act
If revoking in writing:
Must be executed with same formalities as required by the Statute of Wills
If it is a Holographic revocation, no witnesses are required
If it is a typed revocation, must be witnessed
Physical act:
Destroying
Obliterating
Burning
84 O.S. § 101, 102
you must have necessary intent
if the will was destroyed by someone else, it must be done the presence of
the testator and 2 witnesses must show it was done at the direction of the
testator and the fact of the injury or destruction
the intent requirement can be shown through a change in circumstances
A written revocation is the safest way
If the will is not properly revoked, it is admitted to probate
Harrison v. Bird
Testator orders the atty to destroy her will and he rips it into 4 pieces and
mails them to her.
The pieces are not found in the personal papers after her death
Cousin files copy of the first will, which names her as a beneficiary
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Even if the will was not properly revoked by the atty. b/c it was not found
in the testator’s possession, there is a presumption of revocation
Cousin offered insufficient proof to rebut this presumption
In Okla. 84 O.S. § 101: to revoke there must be 2 witnesses and it must
destroyed in the testator’s presence
If you copy the will, always copy it prior to the signing so that the signatures do
not appear on the copy
The is b/c destruction of the duplicate would then revoke the original as well
2. Probating lost wills 58 O.S. § 81 and 82 p.7
But it is very hard to show that the will was in existence at the testator’s death and
that it was fraudulently destroyed
3. Thompson v. Royall
Testator attempted to revoke her will by having her atty and a witness write on the
back that it was revoke but was to serve as a memo for future will; she then
signed the attempted revocation
In Okla. under 84 O.S. § 101, it would not be a revocation b/c it is not in the
handwriting of the testator
The court here hold that it was not destroyed b/c there were no marks of lines
through the will
4. Partial revocation
These are valid in Okla. 84 O.S. § 101 and 103
Makes it very easy to commit fraud
Partial revocation will increase the residuary gift, not any of the gifts to other
beneficiaries.
5. Dependent Relative Revocation (DRR)
Must show 3 things
Attempted revocation
Ineffective disposition
Testator’s intent: choose b/t 2 alternatives
Carter v. First untied Church of Albany
Facts: 1963 will was found and portions of it had been marked through
Evidence showed that testator intended to changer her will but never
executed a new will
W/o the application of DRR, the revocation would be final
W/DRR: the attempted revocation and the new disposition must be done
at the same time to show that they were connected
Here, we can’t tell but the court says that there is a presumption that they
were done at the same time b/c the 2 documents were found together
2 alternatives: restore 1st will or pass through intestacy
1st will stands b/c it is closer to the testator’s intent
Courts have set limits on DRR: it only applies when there is an alternative plan
that fails or where there is a mistake in the terms of the revoking instrument or if
the mistake is established by clear and convincing evidence (must be apparent
from the face of the will that “but for” the mistake, the will would not have been
changed
Under DRR in Okla., the statute says that the 2 alternatives don’t matter and that
the revocation isn’t valid (regardless of the intent) 84 O.S. § 103.
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To get around this, you would argue that it was 2 different acts
Revocation was independent of new disposition and therefore § 103 would
not apply
Estate of Alburn
Testator revoked KW with the expectation that her MW would be revived
Apply DRR: attempt to revoke (destruction of KW), ineffective
disposition (failure of MW to revive) and what was her intent
Intent was probably closer to KW will since the provisions of that will and
the MW were essentially the same
Revival of prior will
States fall into 3 categories: will #1 is not revoked unless will #2 is in
effect at death, will #2 legally revokes will #1 when executed and upon
revocation of will #2, will #1 is revived if there is intent to revive (the 3rd
group says that there will #1 must be re-executed)
In Okla., there is a “no revival” statute which says that once will #2 is
executed, will #1 is dead and can’t be automatically revived 84 O.S. §
106; the result in the above case would be that the physical revocation
would not revive the will, but if there had been a written revocation of the
KW with a statement saying the intent was to revive the MW, it would
work
6. Revocation by operation of law
Divorce 84 O.S. § 114
Former spouse is treated as predeasing
Look also at 15 O.S. § 178, which revoked spousal provisions on other
documents; b/c ERISA it probably does not include retirement plans
Marriage
If the will is not changed, W takes intestate share in most states
In Okla., it is a forced share which is ½ of JIP 84 O.S. § 44
Birth
In Okla., if not in will gets intestate share 84 O.S. § 131
If you want to disinherit, you must say so
If you want to cover all children equally in the will, you should say
something about any children that you now have or will have in the future
C. Components of a Will
1. Integration of Wills
All papers present at the time of execution which were intended to be part of the
will, are integrated into the will
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Cases arise when the pages of a will are not physically connected and there is no
internal coherence or where these is evidence that staple has been removed and
the will stapled again or where one page is typed in a different font
Presumption in favor of integration ad the burden is on the contesting party to
disprove
2. Republication by Codicil
Will is treated as reexecuted (republished) as of the date of the codicil
Can apply only to wills that were validly executed prior to the codicil
If testator writes a codicil to 1st will and does not revoke 2nd will, 2nd will is
treated as revoked by implication
Revoked wills: may be revived by codicil if testator intended
Ineffective will: generally not allowed to republish an invalid will; Okla. is
probably in the minority and will allow this. See Johnson v. Johnson
A codicil can be revoked without revoking the underlying will
3. Incorporation by reference
Any writing in existence when a will is executed may be incorporated by
reference if the language of the will manifests this intent and describes the writing
sufficiently to permit its identification
Elements:
Writing must be in existence at time of executing will
Writing must be clearly identified in will
Writing must be the one referred to in the will (reasonable certainty)
The intent to incorporate document in will must appear on the face of the
will (no extrinsic evidence)
Attested and Holographic Incorporation: a type written provision of will can be
included in a holographic will by reference or vice-versa
Clark v. Greenhalge
Testator’s will referred to a memo which would devise her personal
property
A memo was in existence when the will was executed but the testator then
began to keep bequests in a notebook too
The gift in question was written in the notebook in a nurse’s handwriting
so it is not a holographic codicil
Court holds that b/c the notebook was in existence when the codicils to the
will were validly executed, it is incorporated by reference (will was
republished at the time of the codicils)
Smith v. Grayson
Court held that the letter found in a safe deposit box was incorporated by
reference even though the letter had a different date than the one referred
to in the will
Since the letter was dated prior to the codicil, it was in existence at the
time of republication by the codicil
Johnson v. Johnson
Typewritten will was not validly executed
However, the holographic portion at the bottom was
The Court held that the holographic will was an effective codicil and that
codicil republished the will.
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This is the minority view; most states hold that only validly executed will
can be republished
Court should have used incorporation by reference to validate the typed
portion
4. Acts of independent significance
If beneficiary or property designations are identified by acts or events that have a
lifetime motive and significance apart from their effect on the will, the gift will be
upheld under this doctrine
If testator signs a document which alters the disposition of property under the will
but the document does not conform with the statute of wills, ask if the testator did
something to change the testamentary disposition; if yes, it probably is not
independent
D. Contract relating to wills
1. A person may enter into a contract to make a will or a contract not to revoke a will.
Contract law, not the law of wills applies. If party dies leaving a will not complying
with the contract, the will is probated but the contract beneficiary is entitled to
enforce the contract by having a constructive trust impressed for his benefit upon the
estate or devisees of defaulting party. Court may also apply quantum meruit
2. Oral contracts: must be proven by clear and convincing evidence
3. Remedies: not remedy until after death unless it was for a devise of real estate; the
statute of limitations will begin to run at death; claims are filed as if the person is a
creditor of the breaching party
4. Consideration: contracts to make wills or not to revoke wills must be supported by
consideration; Promise to marry and take care of someone is not consideration;
Promise of future gift is not consideration; promise to take care of someone that you
are not married to is consideration.
5. The will is still valid even if the contract to make it is not
6. Contracts not to revoke
Three types:
Joint will: one instrument executed by 2 or more persons as the will of
both. When 1st spouse dies, will is probated; probated again when 2nd
spouse dies; will is revocable prior to the death of the 1st spouse; after 1st
spouse’s death it becomes irrevocable and unenforceable
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Mutual wills: separate wills that contain mutual provisions
Joint and mutual wills: joint will that devises in accordance with a
contract; one spouse usually agrees not to revoke without the knowledge
and consent of the other spouse; presumption is that joint and mutual
wills are not contractual
Rules for revocation
Notice is required
Alteration before death: if not notice is given but the one who revokes
dies first, there is no problem b/c the survivor is not held to the contract
Alteration after death: if not notice is given, and the one who revokes
does not die first, the court will enforce the contract on the estate of the
surviving spouse
Example: H gives W notice that he is changing will; H makes new will
but W does not; W is still held to terms of will upon her death unless she
revises it.
Example: If H changes will w/o notice to W and he dies 1st, no remedy; if
W dies 1st the contract will be enforced.
Via v. Putnam
H did not change is mutual will with ex-W prior to death
2nd W claimed spousal share after his death
2nd W’s forced share should take priority over a will made pursuant to a
contract
but in Okla. a surviving spouse’s rights are inferior to those of creditors
V. Will Substitutes: Nonprobate transfers
A. Contracts with POD provisions
1. Common law rule: POD designations are not valid unless they comply with the
statute of wills b/c they are testamentary instruments.
2. Okla. Rule 6 O.S. § 901-902: POD accounts are valid despite their testamentary
nature if they are expressly designated as POD. Donor can withdraw funds up to
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death. Donee can withdraw from account. POD accounts are not subject to gift tax
b/c they are not present transfers.
3. Wilhoit v.. Peoples Life Insurance
W received life insurance proceeds and then returned it to the company to be put
on deposit with them
She designated that it go to Robert Owens upon her death but in her will stated
that it should go to Robert Wilhoit
Separate agreement means so this was not insurance policy and since it was not
executed in accordance with the statute of wills it is not valid
Follows rule still applied in some states: POD not valid unless it is insurance
policy
4. Estate of Hillowitz
H was a partner in an investment club which paid w his portion when he died
Executor claims it should pass with estate
Court says that the partnership agreement was valid, so the transfer doesn’t have
to comply with the Statute of Wills
5. Cook v. Equitable Life Assurance Society
H had policy naming 1st W beneficiary
They divorce and he marries 2nd W
When he dies, she tries to claim that H’s will changes the beneficiary on the
policy
Court says that it must be changed in accordance with the terms of the policy, not
valid if just done in the will
The rule protects life insurance companies and allows beneficiary to receive
payment quickly
3 exceptions:
wavier of contractual requirements by insurance company and new
certificate has been issued with new beneficiary
if contractual requirements are beyond insured’s control (can’t literally
comply with requirements)
if insured dies before modification takes effect
Note that life insurance policy designation is not revoked by divorce; except in
Okla. see 15 O.S. § 178: which revokes by statute; however, it does not apply to
policies written prior to the statute and changing it by will is still not effective;
note sure how this effects retirement plans b/c ERISA won’t allow it but does
ERISA preempt state law?
B. Multiple Party Bank Accounts
1. There are 3 types of multiple party back accounts and whether the court will hold that
it was a testamentary gift often depends upon what type of account it is
True joint account: becomes property of the survivor after death, both parties
have access to the account during their lives and these accounts are considered
PRESENT TRANSFERS
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Okla. Statute 60 O.S. §74: either party can w/d funs but creditors can only
reach that portion of account to which that depositor has contributed. In
Okla., it can’t be created unless expressly provided for in the language
If 2 names are on the signature card and both had access during life, a
presumption exists that the account was a true joint account; party
contesting must prove by clear and convincing evidence
Payable on death account: Only the contributor has access during life and the
beneficiary gets funds upon death;
They are dealt with as a contract b/t the bank and the person
Okla. Statute 6 O.S. § 901, 902
Beneficiary must be changed on account, not in will
If beneficiary dies first, it passes pursuant to their will
Agency or convenience accounts: durable power of attorney; no present intent to
make a gift and no intent that 2nd party will take at death
2. Joint safety deposit boxes: most states do not recognize them as being held in joint
tenancy b/c of the possibility of fraud
3. Totten trust: 15 O.S. 902: function like a POD: “A” deposits money into account in
the name of “A as trustee for B”; goes to B at A’s death
4. Franklin v. Anna National Bank of Anna
Man put care taker on account with him
Court said his intent of making it a convenience account would control and she
does not get the money when he dies
C. Joint tenancies
1. gives joint tenants equal interest
2. no power to devise share
3. Creditor may seize joint tenant’s interest during life; at death, it vanishes there is
nothing for them to reach
4. Intent to create a joint tenancy is a present transfer and is not subject to the statute of
wills
5. can’t be changed by will (reduces certainty)
D. Revocable Trusts
1. Okla. has a presumption that trusts are revocable unless otherwise stated
2. In Okla., Property can be deeded to either the trust or the trustee
3. If trust is irrevocable: probably considered a gift so there is gift tax; no estate tax if
set-up right; there are income tax consequences
4. If revocable: no gift tax, estate is fully taxed at creator’s death; income tax is taxed to
creator
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5. Farkas v. Wiiliams
Creator purchased stock as trustee for EE
Court said that b/c he gave up right to total control of the stock, he had created a
trust
Farkas retained the power to sell and was still subject to requirements of the trust
Had good evidence of intent
6. In re Estate and Trust of Pilafas
Creator established trust with specific provision for revocation
The original trust left out 3 of his children and then he told attorney to change it
but it was not changed before his death
Creator also had a pour-over will which placed other assets into the trust when he
died
Both the will and the trust where in the testator’s possession at his death and can’t
be found
Presumption that will was revoked so assets not already in the trust do not pour-
over, but the trust is still valid b/c it was not revoked in accordance with the
specific provision
7. State Street Bank v. Reiser
Bank made personal loan to creator of trust and did not realize that the assets that
he claimed to own were actually owned by the trust
When he dies, everything is in the trust
2 arguments:
integrated estate plan with trust and will: trustee not required to pay debts,
trust assets can be reached only during creator’s life if it is a revocable trust (if
irrevocable, can only get the income)
creditors can reach assets which could be payable to creator
Creditors can reach the assets here b/c the power to revoke ended at death
Probably would be different if the only asset was the life insurance policy which
was payable to the trust
8. Pour-over wills
Will that transfers residue to trust that was established during life (trust must be
funded during life)
Different from a testamentary trust: they are not funded until death and the court
directs the will’s executor to fund the trust and the trust is subject to court
supervision forever; with an inter vivos trust, no court action or supervision is
required
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Pour-over wills are easy to administer and provide secrecy b/c trusts are not
public documents
Because they are testamentary in nature, you must look to 2 other doctrines to
avoid having to comply with the Statute of Wills:
Incorporation by reference: a pour-over mentions the existence of a trust
and thus incorporates it by reference; the problem is that the trust must be
in existence at the time of the will and anytime that the trust is amended,
the will must be too;
Acts of independent significance: requires that some assets be transferred
during life of creator
Differences: independent significance requires that the inter vivos trust
have assets transferred to it during life; incorporation requires that the trust
be in existence when the will is executed
Solution found in the statute: 84 O.S. § 301, which provides that a devise or
bequest from a will into a trust is valid if:
The gift in the will is valid
The trust is identified in the will and its terms are set forth in a writing
other than the will and that is executed before or simultaneously with the
will or the trust was created by a valid will of a 3rd person who
predeceased the testator.
A pour-over trust is valid whether funded or unfounded
Amendments may be made to trust after execution or even after the
testator’s death, but property shall only be administered in accordance
with amendments made before the death of the settlor unless the trust
expressly provides for amendments after death
The testator or a 3rd party may make amendments
Amendments may be made by any means provided for in trust including
oral amendments
9. Use of revocable trusts in estate planning
Consequences and advantages during creator’s life
Property management by a fiduciary
Clarify title by keeping marital property separate
A revocable trust has no income or gift tax benefits over a properly drafted
will
Dealing with potential of becoming incompetent
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Consequences and advantages at creator’s death
Costs: avoid probate with revocable inter vivos trust
Delays: trust assets are available immediately
Creditors: creditors can almost always reach trust assets and personal
assets
Investments: during the probate process, the decedent’s estate can have a
trustee invest property rather than an administrator
Publicity: wills are public, trusts are not
Out-of-state property: avoid ancillary probate
Forced share: a trustor may not eliminate forced share by placing property
in a trust
Testamentary trusts: avoid restrictions in and expenses of testamentary
trusts and allows foreign corporations to serve as trustee
Uncertainty: the law of revocable trusts in not as certain as that of wills
Will contests: avoidance of will contests b/c it is more difficult to
establish undue influence and fraud in a trust
Controlling surviving spouse’s share: a trust is an alternative to a
contractual will and allows for control of spouse’s assets at time of
creator’s death
E. Planning for incapacity
1. power of attorney
good for small to moderate estates
durable: only terminates at death; non-durable terminate with the incompetency
of the principal (most states have enacted statutes which allow it to continue)
in Okla.: a presumption of validity arises if a durable poser of attorney is
executed with 2 disitnerested witnesses and it is notarize; if these requirements
are not met, it may still exist, but must be proved
2. comparing with revocable trusts
trust does not cease with death, durable power does
courts will appoint a successor trustee; if durable power terminates at death of
agent unless the principal appoints a successor
probate is avoided with a trust
agent and trustee can both authorize gifts
trustees are held to higher standard of care
3. Living will
63 O.S. § 3101
Must have 2 disinterested witnesses
Family can still request based on the wishes of the person, but a living will takes
away the burden
For stopping of hydration/nutrition, you must have living will, a family member’s
word is not enough
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VI. Construction of Wills
A. Admission of extrinsic evidence
1. Plain-meaning rule: if a document is clear and unambiguous, courts can not look to
extrinsic evidence to interpret it; this creates a presumption that is overcome only
with strong evidence of another meaning
Mahoney v. Grainger
Court held that meaning of “heirs at law” was not ambiguous and
therefore no extrinsic evidence could be used to show that the testator
intended someone else to get her property
Latent ambiguity of the use of the word “heirs” instead of “heir” b/c she
thought her cousins would get her property
Fleming v. Morrison
The will was not ambiguous but extrinsic evidence was allowed to show
that there was no intent b/c testator intended will to be a fake
Estate of Russell
T dies and leaves a HW which gives everything to her friend and dog,
except for 2 gifts to niece
Niece claims that will is void b/c of gift to dog; friend claims that the will
means that he should take care of the dog
This is a latent ambiguity b/c you can only tell by looking outside the will
that Roxy was a dog
Ct agrees with niece and awards her ½ of the estate (gift to residuary
beneficiary is void so it passes to intestate heir)
2. Patent v. Latent ambiguities
Patent is clear from the face of the will
Latent requires outside information
Extrinsic evidence is usually not allowed to show a patent ambiguity, but is
allowed with respect to latent
Personal usage exception: if testator referred to someone by another name, the
evidence is admissible to show that the will means someone different than the
person with the legal name given
Courts may also consider extrinsic evidence of mistakes in execution (writing
error or signed the wrong will)
Mistakes in inducement: extrinsic evidence not usually admitted unless it is
apparent from the face of the will and the testator’s intent is clear from the face of
the will ( give to nephew b/c thought son was dead)
Okla. rule 84 O.S. § 152: if there is a patent ambiguity, extrinsic evidence (except
for testator’s statements) may be admitted; case law extends this to latent
ambiguities too
84 O.S. § 174: if there is an imperfect description, mistake or omission in the will
the court can allow extrinsic evidence except that it can’t show that the testator
had a different intent
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3. Correcting mistakes
Erickson v. Erickson
H made will days before getting married and left property to new W
Statute in this case called for revocation upon marriage of all wills in
existence at the time of marriage
Court says that extrinsic evidence is not permissible to show intent, but
could admit it to correct a mistake
3 reasons: it is admitted to prove that a will was executed by the testator
in reliance on fraud, undue influence or duress and there is no difference
b/t those and innocent misrepresentation, innocent error and drafting
errors; innocent misrepresentation which causes will to not reflect the
testator’s true intent is treated the same as fraud so you should use
extrinsic evidence for both; signing the will only creates a rebuttable
presumption
4. Modern rules
Latent: extrinsic evidence may always be introduced to show that under the
circumstances of a case, seemingly clear language of a will actually embodies a
latent ambiguity
Patent: when uncertainty appears on the face, intent is to be determined by the
words; circumstances of the execution may be allowed to show intent (no
declarations of testator)
B. Death of Beneficiary Before Death of Testator
1. Common law rules
All gifts made by will are subject to a requirement that the devisee survive the
testator unless the testator specific otherwise.
Specific or general devise: if it lapses, it falls to the residue
Residuary devise: (no residue of the residue rule) if it lapses, heirs take through
intestacy; if it is only one share, that share passes through intestacy
Class gift: surviving members split the shares of members who have predeceased
the testator
Void devise: same as lapsed gifts
2. Okla. laws
Lapse statute 84 O.S. § 177
If devisee dies during the lifetime of the testator, the disposition to him
fails unless the will provides otherwise (lapses if will is silent)
Anti-lapse statute 84 O.S. § 142
If a beneficiary predeceases the testator, and that beneficiary is related to
the testator and his lineal descendants, then the gift goes to his
descendants
Beneficiary must be related to the testator as a child or any next of kin,
beneficiary must leave lineal descendants and there can be no contrary
intent expressed in the will
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3. Cases
Allen v. Talley
Testator left property to her living brothers and sisters
Only 2 were still living at her death
Sister says that words of survivorship prevent the application of the anti-
lapse statute
Court says that is correct b/c the word “living” is followed by “share and
share alike” which has no meaning if the anti-lapse statute is applied
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