Law of Wills
first Edition

Law of Wills

by Browne C. Lewis

Browne C. Lewis, Law of Wills, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License. CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission. Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI.

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The purpose of this casebook is to train law students to think and act like probate attorneys. This book is meant to be used in conjunction with the author's book on the law of trusts. This book's focus is problem-solving and legal application; the book includes numerous problems, so law students can learn to apply the law they learn from reading the cases. It also contains collaborative learning exercises to encourage students to engage in group problem-solving. The book is divided into three parts to reflect the main types of issues that students will encounter if they practice probate law. The book's organization mirrors the manner in which probate law is practiced in the real world. 

The book starts with an examination of the intestacy system because the majority of people die without executing a will. Therefore, most of the legal issues a probate lawyer faces center around the intestacy system. Unlike the typical wills casebook, this book provides a detailed discussion of the intestacy system. A chapter on ethics is included because probate attorneys encounter ethical issues that are different from attorneys practicing in other areas of law. 

The second part of the book includes an exploration of the testacy system. It is arranged so professors can lead students from the client interview to the will execution. The first three chapters of this section deal with issues that directly impact the existence of the inheritance system. It analyzes a person’s ability to control the disposition of his or her property after death. This serves as the students’ first introduction to the power of the “dead hand”. These chapters are included to start a public policy discussion about the rights of the dead, the right of heirs, and the necessity of an inheritance system. I tell my students that, when executing a will, they must think of the ways that it can be contested. In addition, I tell them that a will can be contested on two fronts-an attack on the testator and an attack on the will. Two chapters in this part highlight the ways that the testator’s ability to execute a valid will may questioned.

The final chapters in this unit show the issues that can be raised to dispute the validity of the will. They also explain the different types of wills that are available. The final part of the book deals with non-probate transfers. These chapters are included to show students the other devises that people can use to distribute their property. That knowledge is important because the majority of people use these procedures to transfer their property. At the end of the semester, my students have to draft a will based upon a fact pattern that I give them. I intentionally include non-probate property in order to see if they will attempt to distribute that using the will.

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Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the Center of Health Law & Policy at Cleveland-Marshall College of Law. Prior to joining the faculty at Cleveland-Marshall, Professor Lewis was an associate professor at the University of Detroit Mercy School of Law, a visiting professor at the University of Pittsburgh School of Law, a summer visiting professor at Seattle University School of Law and a legal writing instructor at Hamline University School of Law.  Professor Lewis has also taught in the American Bar Association CLEO Summer Institute.

Professor Lewis has been a visiting scholar at the Brocher Foundation in Geneva, Switzerland, the Hasting Center, and Yale University’s Interdisciplinary Center for Bioethics.  As a Senior Fulbright Specialist, Professor Lewis conducted research at Hebrew University and Haifa University in Israel.  Professor Lewis was also a Core Fulbright Scholar at King’s College in London, and a Robert Wood Johnson Public Health Law Scholar in Residence at the Cleveland Public Health Department.

Professor Lewis writes in the areas of estate planning, probate and reproductive law.  Her article on human oocyte cryopreservation was recently published in the Tennessee Law Review.  In 2012, New York University Press published Professor Lewis’ book on paternity and artificial insemination. Professor Lewis has recently completed a book on posthumous reproduction for Routledge Press. 

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Introduction. Law of Wills
Introduction.1 - About the Author
Introduction.2 - Notices
Introduction.3 - About CALI eLangdell Press
Introduction.4 - Preface
Chapter One. Ethically Representing the Elderly Client
1.1 - Introduction
1.2 - Client Identification
1.3 - Conflict of Interest
1.4 - Confidentiality
1.5 - Competency
1.5.1 - The Intended Beneficiary
Chapter Two. Intestacy System (Basic Overview)
2.1 - Introduction
2.2 - Distribution Under the Intestacy System
2.2.1 - Uniform Probate Code § 2-103. Share of Heirs other than Surviving Spouse
2.3 - Descendants
2.3.1 - Illustration One
2.3.2 - Illustration Two
2.3.3 - Two Important Rules to Remember
2.4 - The Meaning of Representation
2.4.1 - English per stirpes
2.4.2 - Modern per stirpes
2.4.3 - A Case Illustration
2.4.4 - Per capita at each generation (1990 Uniform Probate Code)
2.4.5 - Comparison
2.5 - Ancestors, Collaterals and Others
2.5.1 - Parents
2.5.2 - Other Ancestors and Collaterals
2.5.3 - Laughing Heirs
2.5.4 - Escheat
2.5.5 - Advancements
2.5.6 - Computation of Shares-Hotchpot Method
Chapter Three. Intestacy System (Surviving Spouse)
3.1 - Introduction
3.2 - Definition of Spouse
3.2.1 - Putative Spouse
3.2.2 - Common Law Spouse
3.2.3 - Same-Sex Spouse
3.2.4 - Other Issues Impacting the Status of Surviving Spouse
3.3 - What does it mean to survive?
3.3.1 - Common Law
3.3.2 - Original Uniform Simultaneous Death Act
3.3.3 - UPC and Modern USDA (120 Hour Rule)
3.3.4 - Brain Death vs. Hearth Death
3.4 - Other Surviving Spousal Resources
3.4.1 - Social Security and Retirement Benefits
3.4.2 - Homestead, Personal Property Set-Aside, and Family Allowance
3.4.3 - Dower
3.4.4 - Fractionalize Forced Share
Chapter Four. The Intestacy System (Marital and Adopted Children)
4.1 - Introduction
4.2 - Marital Children
4.2.1 - Posthumously Born Children
4.3 - Adopted Children
4.3.1 - Legal Adoption
4.3.2 - Equitable Adoption
4.3.3 - Adult Adoption
4.3.4 - Stepparent Adoption
Chapter Five. Intestacy (Non-Marital Children, Stepchildren and Foster Children)
5.1 - Introduction
5.2 - Non-Marital Children
5.2.1 - The Right to Inherit From Mothers
5.2.2 - The Right to Inherit From Fathers
5.2.3 - Right to Inherit Through Fathers
5.3 - Stepchildren and Foster Children
5.3.1 - Stepchildren/Foster Children are not entitled to inherit
5.3.2 - Stepchildren/Foster Children may inherit if the necessary relationship exists
5.3.3 - Stepchildren/Foster Children may inherit if there are no other heirs available
Chapter Six. Intestacy (Children of Assisted Reproductive Technology)
6.1 - Introduction
6.2 - Posthumously Conceived Children
6.2.1 - The Right to Inherit From Fathers
6.2.2 - The Right to Inheritance Through Fathers
6.3 - Children Conceived Using Artificial Insemination
6.4 - The Paternity of the Inseminated Woman’s Husband
6.4.1 - Consenting Husband is the Legal Father
6.4.2 - Nonconsenting Husband is not the Legal Father
6.5 - The Paternity of the Sperm Donor
6.5.1 - The Sperm Donor is not the Legal Father
6.5.2 - The Sperm Donor May Be the Legal Father
6.6 - Children Conceived Through Surrogacy Arrangements
6.6.1 - The Possibility of Inheriting From the Woman
6.6.2 - The Possibility of Inheriting Through The Woman
Chapter Seven. Testamentary Freedom
7.1 - Introduction
7.1.1 - The Decedent’s Right to Control the Distribution of Property
7.2 - The Decedent’s Right to Place Restrictions on the Right to Inherit
7.2.1 - Some Restrictions are Unreasonable
7.2.2 - Some Restrictions are Reasonable
Chapter Eight. Disinheritance
8.1 - Introduction
8.2 - Exceptions
8.2.1 - Forced Heirs
8.3 - Negative Disinheritance
8.3.1 - Example
8.3.2 - UPC § 2-101 Intestate Estate
8.4 - Expressed Disinheritance by the Testator
8.5 - Disinheritance by Operation of Law (Slayer Rule)
8.5.1 - Application of the Slayer Statute
8.5.2 - Exceptions
Chapter Nine. Testamentary Capacity (Mental Competency and Insane Delusion)
9.1 - Introduction
9.2 - Testamentary Capacity
9.3 - Insane Delusion
Chapter Ten. Testamentary Capacity (Undue Influence, Duress and Fraud)
10.1 - Introduction
10.2 - Undue Influence/Duress
10.2.1 - Presumption of Undue Influence
10.2.2 - Undue Influence
10.2.3 - Duress
10.3 - Fraud
10.3.1 - Fraud in the inducement
10.3.2 - Fraud in the Execution
10.4 - Intentional Interference With An Inheritance Expectancy (IIE)
Chapter Eleven. Attested Wills
11.1 - Introduction
11.2 - Writing
11.3 - Signed by the Testator
11.3.1 - Signature Problems
11.4 - In the Presence
11.4.1 - Line of Sight
11.4.2 - Conscious Presence
11.5 - Witnesses
11.6 - Revocation
11.6.1 - By Later Writing
11.6.2 - By Physical Act
11.6.3 - Dependent Relative Revocation and Revival (DRRR)
11.6.4 - Revocation by Changed Circumstances
Chapter Twelve. Non-Attested Wills
12.1 - Introduction
12.2 - Holographic Will
12.2.1 - Testamentary Intent
12.2.2 - In the Testator’s Handwriting
12.2.3 - Material Portions
12.2.4 - Preprinted Forms
12.3 - Nuncupative Wills
Chapter Thirteen. Additional Doctrines Impacting Wills
13.1 - Introduction
13.2 - Incorporation by Reference
13.2.1 - In Existence
13.2.2 - Description and Intent
13.3 - Integration
13.4 - Republication by Codicil
13.5 - Acts of Independent Significance
13.6 - Interaction Between the Doctrines
13.7 - Contracts Relating to Wills
13.7.1 - Contract to Make a Will
13.7.2 - Contract Not to Revoke a Will
Chapter Fourteen. Mistakes and Curative Doctrines
14.1 - Introduction
14.2 - Drafting Errors
14.3 - Execution Errors
14.3.1 - Strict Compliance
14.3.2 - Substantial Compliance
14.3.3 - Harmless Error/Dispensing Power
Chapter Fifteen. The Stale Will Problem
15.1 - Introduction
15.2 - Common law/Default Lapse Rules
15.2.1 - Specific and General Devises
15.2.2 - Residuary Devises
15.2.3 - No Residue-of-a Residue Rule
15.2.4 - Class Devises
15.2.5 - Void Devises
15.2.6 - Devisee Predeceases the Testator
15.2.7 - Testator’s Contrary Intent
15.3 - Ademption
15.3.1 - Ademption by Extinction
15.3.2 - Ademption by Satisfaction
15.4 - Other Doctrines Relevant to Will Property
15.4.1 - Exoneration of Liens
15.4.2 - Abatement
Chapter Sixteen. Will Substitutes
16.1 - Introduction
16.2 - Life Insurance
16.2.1 - Changing the Beneficiary
16.3 - Private Retirement Accounts
16.4 - Joint Bank Accounts
16.5 - Concurrently Owned Real Property
16.6 - Inter Vivos Trusts
16.6.1 - Creation of a Trust
16.6.2 - Modification/Revocation of a Trust