1/11/10 8:59 AM← WILLS & ESTATES ← Weems / Fall 2005←

← USE THIS AND OUTLINE #2 FOR THIS CLASS (THEY ARE SUBSTANTIALLY SIMILAR BUT THIS ONE HAS A LITTLE MORE INFO IN SOME PLACES)← Chapter 1: Intestate Succession ←← § 1.1 Property subject to law of intestate succession←← If a person makes a will this will control who gets what when that person dies Big question is the will valid? Law of Wills, or Intestate Succession All property (real and personal) in which deceased person owned an

inheritable interest in at time of death and which was not included in a will is controlled by intestate succession

← Life insurance proceeds are distributed by intestate succession when Decedent dies with life insurance proceeds payable at death, Decedent dies without a will, and “Estate of Insured” is the beneficiary ←← HW: 1.1 -1.4, MCA 91-1-1, MCA 91-3-5←← Joint tenancy with right of survivorship property is not affected by

intestate succession because the decedent does not own an inheritable interest in the property but rather the surviving joint tenant owns 100% inheritable interest

← Joint tenancy is presumed for bank accounts and certificates of deposit

made in the name of two or more persons and payable to any one of such persons or the survivor

←

Joint tenancy for the contents of a safety deposit box requires clear and unambiguous agreement to that affect (owner must purposely contract rights to those items)

← Weaver v Mason : The law (in MS and other places as well) is clear that

joint tenancy of an asset cannot be part of a single joint tenant’s estate --- the money goes to the surviving joint tenant with right of survivorship; thus, bank accounts held in joint tenancy cannot be touched by creditors seeking debt from only one of the joint tenants who died.

Joint tenancy is when a & b are both owners with the right of survivorship This case is a action brought by dead person against a dead person Plaintiff must sue the personal representative of Mr.Mason’s estate

the adminstratrix/ adminstrator Argument: because Mason could have used the entire account

during his lifetime so the creditors should have access after death, but this is not the law

The law is that if you have a joint tenancy account the non-surviving member (Mason)(decedent) has no inheritable interest

←← Cooper v Crabb : When property is clearly owned in a joint tenancy with right of survivorship, parol evidence will not be allowed to supplement the documents which make that clear.←

The best evidence of what a deceased person said especially in writing, the terms of the documents at them time that these accounts were created is this best proof of intent

← When it is stated that this account is setup with the right of

survivorship, If the court has this information then the court will not entertain any evidence to prove otherwise

o The only way to challenge is to prove that the decedent was not of sound mind, fraud, or undue influence

←← § 1.2 Governing law←← CL Rule:

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intestate succession of real property was governed by the law of the state or nation where the land was located

intestate succession of personal property was governed by the law of the decedent’s domicile

The law governing inheritance of personal property is governed by the state where they are domiciled at the time of death

Ancillary aministration = is extra administration =We don not have this in Mississippi

←← MS Rule: Intestate succession of real and personal property located in the state is

governed by the law of Mississippi Change in law has extinguished ancillary administrations in MS

An out of state resident has to open up an original administration in MS to get property that is covered by MS law

Apply MS law (even though owner/creditor is out of state resident) to

o Inheritance of money on deposit with a bank in MS o Inheritance of stock in a MS corporation o Recovery of debts owed by MS residents

←← § 1.3 Heirs at law – Time of determination←← MS Rule: Whoever is the inheritable class at the moment of death will inherit as long as they are “in being”

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Uniform Simultaneous Death Act (91-3-5) (COPIED FROM BELOW = I THINK IT SHOULD GO IN THIS SECTION)

o If a husband and wife both die in a car accident and it can be proved by preponderance of the evidence that she lived one minute longer than he did, she will inherit everything he owned

o However, if it is not proved by preponderance of the evidence that she lived any amount of time longer than he did, then neither one inherits the other’s property and it will be inherited by survivors of both spouses as if the other spouse had died before the accident took place

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←←←← § 1.4 Heirs at law “in being” – Posthumous heirs←← Harper v Archer : a person is “in being” i.e. “alive” from the moment of conception (for the purposes of inheritance).←

For a child heir merely conceived at death of decedent, “in being” requires

o Fetus to be born alive ando After such period a of fetal existence that its continuance in

life might be reasonably expected←

Uniform Simultaneous Death Act (91-3-5)o If a husband and wife both die in a car accident and it can be

proved by preponderance of the evidence that she lived one minute longer than he did, she will inherit everything he owned

o However, if it is not proved by preponderance of the evidence that she lived any amount of time longer than he did, then neither one inherits the other’s property and it will be inherited by survivors of both spouses as if the other spouse had died before the accident took place

←←← § 1.5 Heirs at law – Right of representation←

Whenever a person’s parent would have taken an inheritance by intestate succession from a decedent’s estate had the parent been alive at the time of the decedent’s death, but the parent was in fact not alive at that time, the person and his or her brothers and sisters, if any, who are in being at the time of decedent’s death, will take in equal parts the inheritance their parent would have taken

o MS law gives right of representation to: Descendents of the person who died and

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Descendents of the dead person’s siblings← Dunaway v McEachern : right of representation does not go to a spouse of a deceased-intended beneficiary, only descendants of decedent.←← Rodgers v Rodgers : unlike most jurisdictions where inheritors in the same class receive per capita inheritance, MS law uses per stirpes to distribute inheritance to heirs at law

Hypo o A had two brothers named B and C who died earliero A now dies intestate o Majority Rule (Per Capita)

B’s two children and C’s three children each get 1/5 of A’s estate

o Mississippi Rule (Per Stirpes) B’s two children get 1/4 each C’s three children get 1/6 each

←← § 1.6 Heirs at law – Relatives by Consanguinity←← Two groups

Linealso Ancestors = relatives on whose prior existence the decedent’s

birth depended Parents, grandparents, great-grandparents, etc.

o Descendants = relatives who would not have been born but for decedent

Children, grandchildren, great-grandchildren, etc. Collaterals = relatives whose existence did not depend on the

existence of decedento Brothers, sisters, uncles, aunts, cousins, etc.

←← Four Inheritance Groups in MS←← Group I = decedent’s children and the descendents of decedent’s children who died before the decedent died

One share to surviving spouse

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One share to each surviving child One share to each child of a previously deceased child (per stirpes)

← Group II = decedent’s father, mother, brothers, sisters, and descendants of previously deceased

One share to each parent and sibling One share to each child of a previously deceased sibling (per

stripes)← Group III = decedent’s grandparents, uncles, and aunts

One share to each grandparent, uncle, and aunt No share to a previously deceased uncle or aunt

o Right of representation does not extend to cousins← Group IV = decedent’s relatives of the highest degree as computed by the rule of civil law←← If no person exist in any of the four groups, the property of the deceased’s estate goes to the state of MS ←←← § 1.7 Half-bloods←← Half-blood relationships can exist only among collaterals←← MS § 91-1-3← Half-bloods are given same group status as full bloods← However, if a full blood heir exists in the same group as the half-blood heir, then the full blood heir inherits to the total exclusion of the half-blood← Also, full blood children of full blood predeceased heirs inherit to the total exclusion of the half-blood in same position (reason is right of representation)←← § 1.8 Decedent’s Surviving Spouse←← MS Intestate Law← Spouse must survive the decedent to be considered in distribution of decedent’s estate← Surviving spouse shares equally with surviving children of decedent

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← If decedent was not survived by any children or descendents of children, then surviving spouse inherits the entire estate← Surviving spouse may be entitled to homestead rights and a living allowance which does not count as part of his or her inheritance ← Common law marriages were invalidated in MS in 1956←← § 1.9 Adoptions←← Majority Rule : adoption is like divorce as far as the natural parents’ ability to inherit from the child given up for adoption.←← MS Rule § 91-17-13 ← Adopted child has right to inherit ← From and through right of representation the of adoptive parents← From the other children of the adoptive parents [just like full bloods] ← However, half bloods cannot inherit from any other relatives← From and through natural family just like before adoption took place← Adoptive family (parents and siblings) has right to inherit← From and through adopted child just like child was their natural child← Natural family’s right to inherit from child given up for adoption is totally extinguished←← Half-adoptions← Occurs when a child is adopted by the new spouse of one of the natural parents following divorce from the other natural parent← No reason why this should cause any change at all in the rights of inheritance between the child and the natural parent now remarried to new adopting parent← ←←← § 1.10 Illegitimates←← Common Law← illegitimate children could not inherit from anyone other than their spouses or children

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← purpose for the rule was the hope that it would discourage sexual intercourse outside the bonds of marriage←← MS Law← 1857 : MS law was changed to permit an illegitimate to inherit from his mother and her kindred apparently recognizing that the rule was not going to achieve its goal← 1981 : MS law was amended to also permit an illegitimate to inherit from his father and his father’s kindred provided ← there had to been an adjudication of paternity or legitimacy before the ← death of the intestate or← there has been an adjudication of paternity after the death of the ← intestate (suit to determine heirship)←← Suits to determine heirship [MS 91-1-27 and 91-7-29]← Timing← Must be instituted within 90 days of publication of notice to the creditors OR← Within one year of the date of death of the intestate← Whichever is less← Standard← Illegitimate must prove his or her alleged relationship with decedent by clear and convincing evidence← BOP becomes beyond reasonable doubt when claimant alleges he or she is natural, illegitimate child of a deceased man and the claimant’s mother was at the time of his or her birth married to another man --- in this situation, there is a very strong presumption that the mother’s husband at claimant’s birth was the natural father← Either the plaintiff or the defendant may make a motion for a DNA blood test pursuant to MS § 93-9-21← Court has power to compel a party to submit a blood test← Court can only request a nonparty witness to submit a blood test←← Illegitimate child may inherit as a legitimate child IF← Natural father marries natural mother and acknowledges the child as his OR

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← Natural parents participate in a marriage ceremony before child’s birth← Even if the subsequent marriage was declared null and void by court←← Natural parents and their kindred may inherit from the illegitimate ← BUT one natural parent and its kindred may not inherit through the illegitimate any property the illegitimate inherited from the other natural parent←← The illegitimate child who dies unmarried and without issue cannot transfer, even by will, property inherited from his father or mother←← Natural father and his kindred cannot inherit from or through the illegitimate child UNLESS the father has← openly treated the child as his and← neither refused nor neglected to support the child← BOP is on the father’s kindred to prove by preponderance of the evidence← If no evidence on either of the two prongs, then claim of father’s kindred must fail←← Administrator’s obligation concerning illegitimates ← as trustee, must exercise reasonable diligence to determine illegitimates’ identity and location← should disclose to court any actual knowledge of persons claiming to be illegitimate heirs← If administrator, with knowledge of an illegitimate heir claim, represents to the court that another person is the sole heir of an estate, such representation may represent fraud on the court← required to provide actual notice to known or reasonably ascertainable illegitimate children who are potential heirs and whose claims will be barred by the running of the 90 day limitation ← as protector of the assets of the estate, duty to contest claims of people who profess to be illegitimate heirs if such claims may be contested properly and in good faith←

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← Where there has been an adjudication of paternity prior to the death of the intestate that a certain child is the natural child of a certain man, the adjudication is FINAL and the issue of paternity may not be adjudicated again← Even if adjudication was by default, no blood or DNA tests were submitted, and the person seeking readjudication was not a party to original adjudication←←← § 1.11 In-laws←← In laws cannot inherit by intestate succession←←←←←← § 1.12 Nonresident Aliens←← Generally, nonresident aliens may not acquire and hold MS land by intestate succession or by will, subject to several exceptions← MS 89-1-23← Residents of Syria or Lebanon← Persons who were or are US citizens and became an alien by reason of marriage ← Where a treaty between two countries permits the alien to own land in MS under certain circumstances (treaties of US and nonresident alien’s country supercedes MS law)←← § 1.13 Escheat←← If there is no one to inherit the property, the property goes to the state. This rarely happens.←←← § 1.14 Advancements←

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← Children who have not received an advancement on their intestate inheritance may tell the chancellor that during the lifetime of the parent, he or she made inter vivos advancements to other kids and that the parent had intended for these to be advancements on their inheritance← If the court believes the child, the court will tell the kid who got the advancement to bring the value of the gifts into court (into hotchpot), or they will not get any of the remaining inheritance --- then the estate can be split evenly based on its true value← If the parent already gave the kid way more than they could ever get from intestate succession, then the kid will just not bring the estate into court←← § 1.15 Loss of Right to Inherit – Willfully Causing Death of Decedent←← A person who willfully causes or procures the death of another will not inherit from the decedent← Same applies to insurance policies← MS Sup Court has indicated that it would hold the same in joint tenancy with right of survivorship← The property will be inherited as if the killer had predeceased the course of action← So, the children of the killer may have the right of representation←← § 1.16 Loss of Right to Inherit – Spousal and Parental Misconduct←← A spouse can, if there is misconduct which manifests a total abandonment of the marriage, forfeit the right to inherit← Repeated acts of adultery are not sufficient← A bigamous “common law” marriage (even though common law marriage is no longer recognized in MS) would constitute an act of abandonment←← What constitutes common law marriage?← Intent to be married

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← Cohabitation ← Holding themselves out to community as being husband and wife←← So, today if a man leaves his wife and meets common law standard for marriage with another woman -- he is prohibited from inheritance by intestate succession from either woman← Estopped from wife← Prevented from new woman b/c never married←←← § 1.17 Loss of Right to Inherit by Contract – Release of Expectancy←← A person can contract away his right to inheritance he has under this area of the law if:← The parties are competent ← (21 years old and of sound mind)← It is clear that the right of inheritance is being contracted away ← (most important)← The compensation is adequate for the contract ← (adequate consideration)←← Marital contracts (pre-nuptial and post nuptial agreements)← Courts look especially hard at the contracts between husbands and wives ← If it appears to be terribly one-sided, the court will label it unconscionable←← Children← A child may contract away his right to inherit from his parent← Such releases of expectancy, if valid, bind the releaser and his descendants who could have claimed through him←←← § 1.18 Loss of Right to Inherit – Assignment of Expectancy←

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← Bayless v Alexander ← An assignment is only good if the person who makes the assignment survives the source← Where dealing with assigning the right of a person of unsound mind, always have a guardian appointed←← In an assignment of expectancy, the people who would inherit through the assignor are not bound by the assignor’s contract signing away his expectancy←← If the decedent is competent to make a will, it supercedes any assignment, making an assignment worthless←←← § 1.19 Disclaimer of Inheritance←← Common Law: In order for a gift to be valid, it must be accepted. At common law, the law of intestate succession would not allow someone to refuse the gift.←← The desire to refuse a gift comes up in two situations← A person does not want to pay the estate tax← The person is hopelessly in debt and the creditors will get the inheritance the moment the property comes in ←← Uniform Disclaimer of Property Interest Act ( § 89-21-1 )← A person who has inherited by way of intestate succession may disclaim that interest, in whole or in part, by filing a disclaimer to that effect with the chancery clerk← Must also deliver a copy of disclaimer to the personal representative of the decedent’s estate← The disclaimed interest devolves as if the disclaimant had predeceased the decedent←←← § 1.20 Intestate Succession – Exempt Property

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←← There is some property which the law cannot seize by process of execution in order to pay debts←← MS law poses three questions in regard to exempt property← Who inherits it?← Exempt property is inherited as all other property of a decedent except in one situation← When the surviving spouse owns a place of residence equal in value to the homestead of the decedent, and the decedent has no surviving children of the last marriage, but decedent does have children or grandchildren of a former marriage← In this situation, surviving spouse shall not inherit interest in the homestead – it goes to decedent’s children and grandchildren← What limitations are there upon the size and value of the homestead?← Homestead cannot exceed 160 acres← If unpaid creditors are present, the value of the homestead is limited to $75K← Who has the right to use and possession of the homestead?← Where homestead is inherited by surviving spouse and their children and/or grandchildren, the surviving spouse has the right to exclusive use and possession of the homestead, as long as surviving spouse remains unmarried and occupies or uses it← A surviving spouse is also entitled to all rents and profits from the homestead property ← Excess of 160 acres for homestead may be partitioned accordingly among surviving spouse and children← A married person may not validly convey or mortgage the homestead property unless the other spouse signs the conveyance or mortgage← If they both sign a mortgage and waive the homestead exemption, the homestead is subject to those creditors← If decedent is not survived by a spouse and/or descendants, the homestead property is subject to the claims of creditors just like the rest of decedent’s property←←

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← § 1.21 Suits to Determine Heirship←← Anyone with a legitimate interest in needing to know who the heirs to an estate are by name may obtain that information← People almost never institute suits to determine heirship because the family almost always believes they know who the heirs are←←← Chapter 2: Administration of Intestate Estate ←← Three Purposes of an Administration← Provides a process whereby the property of the deceased person can be accumulated← Provides a procedure whereby the net estate will be distributed to those who deserve it← Provides a method whereby creditors will be identified and paid (most important)←←← § 2.1 Appointment of Administrator – Jurisdiction and Venue←← This is the process by which the property of the intestate decedent actually gets into the hands and becomes the property of the heirs at law← Jurisdiction← In MS, the chancery courts have jurisdiction over administration of estates← Venue← Proper venue is in the county of the decedent’s residence← If the decedent does not reside in MS, venue is proper← In the county where he died or← In the county where some or all of his personal property is located←←← § 2.2 Person Appointed Administrator←← The Process

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← Petition← Person goes to appropriate chancery court and files a petition asking for a letter of administration to issue← Letter of administration is a document which sets out that the person to whom this document is issued by the court has the authority to deal with all personal property having to do with the decedent← Who is entitled to the letter of administration?← First, the surviving spouse← If another comes forward and request letter of administration, spouse may remove such person within 30 days from death of decedent← Next, the heirs (people who would inherit the property or part of it)← Court will choose the heir at law who is best calculated to manage the estate← Otherwise, a bank or trust company can do it← If no one comes forward within 30 days, the court can grant letters of administration to any suitable person←←← § 2.3 Administrator’s Oath, Bond, and Duty←← Oath← Prior to be granted letters of administration, administrator must take oath that← Decedent died without a will← As administrator he or she will truly administer the goods, chattels, and credits of the decedent← He or she will pay debts as far as the assets allow and ← He or she will make perfect inventory and a just account of goods and so on←← Posting bond← Before the letters issue by the clerk, the person has to take an oath and post a bond promising to faithfully discharge all duties required by law← Purpose is to give anyone who suffers financial loss as a result of the wrongdoing of the administrator in the management of the estate a source of recovery other than the administrator’s resources

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← Bond may be waived or reduced by chancellor if ← the administrator is the sole heir or ← if all heirs are competent and ask by sworn petition that the bond be reduced and waived←← Paying Debts ← The only property that the personal representative is concerned with is personal property – which is used to pay debts and expenses of the administration← The PR will have to deal with real property of the deceased person only when the personal property is not enough to pay all creditors←← Duty← Administrator’s acts must be of that which a reasonable, prudent, and intelligent administrator would take← Must act in good faith and employ such vigilance . . . as prudent persons of discretion and intelligence employ in their own affairs← Holds a fiduciary duty to all parties having an interest in the estate←← § 2.4 Administrator’s Attorney←← If the personal representative is not an attorney, he must get one.← The attorney is the attorney for the personal representative, not the estate← Although the PR may agree to pay a certain amount to the attorney, the court ultimately decides what a reasonable fee is after considering the totality of the circumstances surrounding his service← It is preferable to have the court fix a reasonable fee first and then pay the fee allowed ← Such fee is the personal obligation of the PR unless the fee is fixed by the chancellor← If fixed by the chancellor, the administrator’s attorney fee is an administration expense and may be paid out of the assets of the estate←←← § 2.5 Temporary Administrator

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←← When it is necessary, someone may be needed to manage the estate until a regular administrator can be appointed← Temporary administrators do everything the same as a normal administrator and just turn the estate over when the actual administrator is appointed← Temporary administrators are entitled to fair compensation for their efforts←←←←← § 2.6 Administrator Ad Litem←← Administrator appointed usually for the sole purpose of pursuing a cause of action which had not been filed or was pending when decedent died←←← § 2.7 County Administrator←← Duty to administer the estates of decedents who died owning property in MS and for whom no administrator is appointed within 60 days of the decedent’s death←←← § 2.8 Sheriff as Administrator←← The administrator of last resort← Court must be shown← There are assets to administer and← Creditors claims are valid, if they exist←← § 2.9 Removal of Administrator – Misconduct←← Once properly appointed, an administrator may generally not be removed without proof of misconduct in the management of the estate

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← However, before the administrator is removed, he must first be given notice←← § 2.10 Removal of Administrator – Other Causes←← If a person applies who has a claim to the office superior to that of the person who has been appointed, then the court may replace the administrator in that case← Also, if a will is found, the probate of the will and the granting of letters testamentary effectuate the removal of the administrator←←← § 2.11 Resignation of Administrator←← Administrator may resign, but he or she must make final settlement and satisfaction of the trust ←← § 2.12 Administrator De Bonis Non←← The successor which must be appointed when an administrator dies, resigns, or is removed for misconduct prior to the completion of the administration of the estate←←←←← § 2.13 The Estate to Be Administered←← Personal property is to go into the possession of the administrator to be used to pay debts and expenses, with the remainder to be distributed to the heirs at law← Real property descends directly to, and title vests in, the heirs at law to enjoy until the contingency arises when it may be needed to pay debts←←

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← § 2.14 Inventory and Appraisement – When Appraiser Appointed←← Upon the granting of letters of administration, unless otherwise ordered, at least three disinterested people shall be appointed appraisers and ordered to ← inventory and appraise the goods, chattels, and personal estate of the decedent (except for money and choses in action) and ← return written report to the court within 30 days←← The value placed by the appraisers on the various items is deemed to be prima facie correct, but the presumption may be shown to be incorrect← If it is shown to be incorrect, the administrator is chargeable with the proven actual value rather than the appraised value←← The administrator is charged with making an inventory of the decedent’s money which comes into his or her hands and of debts due the decedent that the administrator knows about←←← § 2.15 Inventory and Appraisement – When Appraisers Not Appointed←← Appraisers are usually NOT appointed← So, the administrator must include in his or her inventory of the money and debts due the decedent a list of the rest of the decedent’s property which has come into the administrator’s hands← The administrator is also supposed to give the value of this property←← The administrator’s complete inventory must be returned in 90 days←← If, after the making of the original inventory, additional property comes into the hands of the administrator, an amended or additional inventory must be made within 30 days←←

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← § 2.16 Inventory and Appraisement – Waiver Of←← Due to the high costs, a chancellor may waive appointment of appraisers← However, a chancellor does not have the right to waive all inventories and appraisals (personal representative must become appraiser) regarding intestate estates← § 2.17 Setting Aside Exempt Personal Property←← Some kinds of personal property are exempt from seizure under execution of attachment← This property is simply no part of the estate← Exempt items include← Tangible personal property worth less than $10K← A part of wages earned← $50K life insurance policy on the life of a decedent payable to the administrator of the estate← The homestead in MS up to a value of $75K← Where there are no unpaid creditors, the dollar limitation on the homestead exemption is immaterial←← § 2.18 Support for One Year←← The personal representative must pay to the surviving spouse and dependent kids enough money to enable them to live for one full year←← § 2.19 Notice to Creditors←← The executor or administrator must ← make reasonably diligent efforts to identify persons having claims against the estate and ← mail to the persons identified a notice informing them that the failure to have their claim probated and registered by the clerk of the court within 90 days from the first publication of the notice to creditors will bar their claim

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← Then, administrator must file an affidavit saying he or she has complied with the diligent efforts requirement← Then, the administrator must publish notice once a week for three consecutive weeks in “some newspaper in the county”← The creditor has 90 days from the first publication to respond← However, if proper procedure is not done, the 90-day period will not run against the creditor← On the other hand, if proper procedure is followed and the 90-day period runs, the creditor may not probate a claim against the estate←←← § 2.20 Claims Requiring Probate←← The claims which are required to be probated and registered by the clerk are contractual claims← Specific money demands which are then due or will mature at some time in the future← Sums due on promissory notes ← Open accounts← Alimony payments in default at decedent’s death← Claims for services rendered← General indebtedness← Judgments or decrees←← Tort claims do not have to be probated← Also, no claim has to be probated unless it is a claim against the decedent← Ex: Funeral expense is a claim against the estate, not the decedent←← Alimony ← An obligation on an estate’s behalf to pay alimony is terminated upon death unless the party has expressly agreed to continue payments until the death or remarriage of the surviving spouse←←← § 2.21 Probating Claim

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←← A claim is probated by the creditor who goes down to the chancery clerk’s office and presents two things← Written evidence of the debt (ex: note, judgment, or itemized account)← An affidavit that says that the statement of the claim is correct and the money is due from the deceased person← Claimant’s affidavit should← Conform to the statute← Contain written evidence← Contain an itemized account← Attach statement in writing←←← § 2.22 Amendment of Claim←← After the 90-day period has expired, the creditor may amend his probate claim as long as he has the prior approval of the court←← § 2.23 Failure to Probate←← If the creditor gets a letter and doesn’t probate the claim within 90 days, the claim is barred← However, if a claimant’s identity is known or is reasonably ascertainable, and the claimant is not mailed a notice by administrator informing the necessity to probate the claim, the 90-day limitation does not bar the claim←←←←←←← § 2.24 Payment of Claims←← The administrator has no authority to pay a claim until it has been properly probated

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← The administrator should not pay a claim unless he is certain that it truly is due and owing← The fact that a claim has been probated is not an adjudication of that fact← If there appears to be even a remote chance of insolvency, the administrator should not pay any claims until the end of the 90-day period← The personal representative is not supposed to pay claims unless they have been probated properly in “substantial compliance with the statute”←← Townsend : If the personal representative probates a claim pursuant to the wishes of some, but not all of the heirs, only the heirs who were present will be bound by the agreement← Ex: If the personal representative paid improperly probated claims, the personal representative will only be liable to the absent heirs←←← § 2.25 Payment of Claims Not Due←← Claims of the kind that must be probated must be probated whether or not they are due and payable← After 90 days from the grant of the letters of administration, the creditor must accept as payment in full of the debt an amount equal to what the debt would have been had it been payable on the day tender is made← Ex: decedent’s obligation to pay $750 per month to former wife is calculated for a commuted value of future and unmatured sums and all of it is paid from the estate←← § 2.26 Contest of Claims←← A probated claim may be contested by the administrator, an heir, or a creditor← However, a creditor may only contest a probated claim if the claim would render the estate insolvent← If the personal representative does not believe that the payment is due on a probated claim, he must not pay it and should contest the probated claim

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← Regardless of who institutes the claim, the burden is on the claimant to prove the claim is valid← Be aware that just because a creditor probated and registered the claim with the clerk does not constitute prima facie evidence that the claim is valid←←←←←←← § 2.27 Secured Claims←← If a bank loans a party money and takes a security interest in the property and the party dies, the bank does not have to probate the claim (but it probably should)← The secured creditor can simply go get the property that the decedent used the bank’s money to buy← If the bank, without probating the claim in the 90-day period, goes and gets the property and sells it and that doesn’t cover the amount that has not been paid back to the bank by the decedent, the bank will lose the money that has not been paid←←← § 2.28 Claims for Services Rendered – Quantum Meruit←← A party may probate a claim for quantum meruit if the court concludes that a reasonable person would not have expected that the person would have done work without payment←← The claim must be probated within 90 days, proving that the agreement had been made, that the claimant was to be paid, and that he had not been paid←←← § 2.29 Oral Contract to Pay for Services Rendered by Will

26

←← Williams v Mason : Allowed to file a claim for services rendered even if you cannot bring a claim for oral contract to make a will because there was no written contract and SOF principles bar evidence of the contract←←← §2.30 Claims Against Estate – Statutes of Limitations←← If the limitations period pertaining to a creditor’s claim expired prior to the decedent’s death, then it may not be recovered against the estate, regardless of any act or promise of the administrator←← The death of the decedent (the one the claim is against) does not interrupt the running of the SOL← Exception: If the decedent dies in the last year of the SOL, it is extended so as to expire one year from the date of the decedent’s death←← The appointment of an administrator tolls the SOL for an extra 90 days← Upon publication of notice to creditors, all probatable claims must be probated within 90 days of the date of first publication no matter what the SOL remaining may be←←←←←← § 2.31 Creditor’s Action to Compel Payment of Probated Claim←← Even though a claim may have been properly probated by a creditor, it does not legally entitle him to the money← If the administrator fails to pay an alleged debt, the creditor will have to take judicial action to compel payment← Actions to compel payments of claims must be brought within four years (and 90 days) of the qualification of the administrator, even though the claim has been duly probated

27

← Reason is that administrators may not be sued for 90 days after taking office, and there is a four-year SOL for actions against administrators←← § 2.32 Taxes←← Previous Tax Rule: MS treated taxes like any other debt (except the government did not have to probate it) --- therefore, taxes had to be paid out of the estate before the money was distributed to the heirs← Uniform Estate Tax Apportionment Act: provides that federal and state estate taxes must be apportioned among all persons interested in the estate in the proportion that the value of the interest of each person bears to the total value of the estate (unless the decedent has a will and it provides otherwise)← Application: If you inherit ¼ of the value of the estate, you are going to have to pay ¼ of the estate taxes←←← § 2.33 Tort Claims Against Estate←← Old Rule: At common law, tort actions permanently abated upon the death of either the injured person or the injuring person← Today’s Rule: Personal actions survive the decedent (with the exception of libel and slander and actions to recover punitive damages)← MS Court has defined a personal action as← Suit to recover personal property← Action for contractual damages (Powell)← Injury to person or property← Reviving or bringing a claim← Tort claims cannot be probated and are not affected by the 90-day period --- they are governed by the 4 year SOL← Other statutes of limitations applicable to claims against estates in general apply to tort claims as well (see § 2.30)←← § 2.34 Management of Estate←

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← The administrator is a type of junior co-manager of the estate with the chancellor← The administrator must get authority from the chancellor before doing anything with the estate← However, the administrator may invest or deposit funds in interest-bearing accounts in federally insured banks and S & L associations whose main offices are located in MS←← § 2.35 Management of Estate – Growing Crops, Farms, and Businesses←← A growing agricultural crop is a personal asset that goes to the administrator for the payment of the decedent’s debts and expenses ← The court may allow the administrator to operate the decedent’s farm or lease it to someone else for a period of no more than 15 months← If necessary to pay debts, the court may allow the administrator to cultivate or lease the farm from year to year← When a decedent dies while engaged in operating a business, the court may authorize the administrator to continue the business as a going concern for a time no more than 3 years←← § 2.36 Management of Estate – Sale of Personal Property←← Perishable property and livestock may be sold for cash for any purpose without an order← Ant item of personal property may be sold for cash without an order if:← The reason for the sale is to pay debts of the estate, and← The appraised value has been obtained← If the reason is not to pay debts and where the sale is to be public, five days notice to interested parties is required← When the purpose of the sale is to reduce to cash property which cannot be equally divided in kind, the heirs must be made aware by summons or publication unless the value of the property does not exceed $500←← § 2.37 Management of Estate – Sale of Land

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←← Nonexempt real property must be sold when a decedent’s nonexempt personal property is not sufficient to pay his or her debts and the expenses of administration← A petition to sell such land must be filed with the court that granted the letters of administration←← § 2.38 Management of Estate – Mortgage or Lease of the Land←← When a decedent’s personal property isn’t enough to pay his debts and the expenses of administration, the court may order that the decedent’s land be mortgaged to secure a loan to pay the debts or expenses←← § 2.39 Management of Estate – Cause of Action of Decedent←← The personal representative may “revive” a COA or initiate a new COA (see § 2.30)← All recovery for wrongful death goes to the beneficiaries of the estate, not subject to the claims of creditors (except for the items listed in the wrongful death statute)← Ex: the part of the recovery allotted for medical expenses goes to pay off the medical expenses; the funeral expenses go to pay the funeral expenses; car damage goes to the car←← § 2.40 Management of Estate – Compromise and Settlement of Claims←← The chancellor may authorize an administrator to settle and compromise any claim belonging to an estate which cannot be readily collected← A new chancery rule was written to abate the problem of chancellors approving settlements that were not fair to the beneficiaries← In petitions for authority to compromise claims for wrongful death or injury, witnesses must be called to testify as to liability and injuries (basically, it is no longer a perfunctory matter)←

30

← § 2.41 Suits By or Against Administrators←← An administrator may bring suit on matters that accrue to the decedent during the administration and may be sued as to such matters as well (after the 90-day period)←← § 2.42 Management of Estate – Prohibited Acts←← Even if the chancellor approves it, an administrator is expressly prohibited from← Borrowing or using for his benefit any of the funds or property of the estate← Taking a position contrary to the heirs← Loaning funds or property to the administrator’s family, attorney, or agent OR← Moving any of the estate property outside of the state of MS←← Executor de son tort← A person who intermeddles with, alienates, or embezzles any of the money of personal property of a deceased person before taking out letters of administration or letters testamentary ← Such person is liable to creditors and others aggrieved by his actions and will be held to the same standard of trust as an administrator←← § 2.43 Insolvent Estates←← When it becomes apparent that there is not enough money to pay all debts and expenses, everyone who has a claim is given notice to come to court and the chancellor will take up each claim, examining the claims that either← Were probated within 90 days OR← If not probatable, were filed with the clerk prior to the hearing← Thus, the chancellor compiles a list of claims found to be due and owing← Preference claims are paid first (expenses of last illness, funeral, administration, and attorney fees)

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← If there is not enough money to pay all these full amount, then they will be paid on a pro rata basis← If there is any money left over after all preferred are paid in full, then the left over money goes to any other creditors←← § 2.44 Annual Accounts←← If a year goes by after the administrator is appointed and he is not ready to close the estate, he must file an annual report← Otherwise, he will be held liable to creditors and others aggrieved by his actions and will be held to the same standard of trust as an administrator← Purpose of this is to let the court know that the matter is proceeding as it ought to proceed (and the administrator isn’t plundering the estate of its money)← Statutory Amendment = BOP is on the clerk to give an accounting of every estate that has been opened up, not closed, and for which there has not been an accounting ← Administrator has duty to do the accounting← Attorney has duty to see that administrator does accounting← Clerk has duty to notify the chancellor that accounting has been done←← § 2.45 Compelling Distribution or Final Settlement←← If an heir is anxious to receive his inheritance, he has two possible remedies← First, six months after letters of administration have been distributed, an heir can petition the court to order the administrator to make the heir’s distribution← If the heir requests this before the final settlement, the heir must put up a refund bond with sufficient sureties, communicating that if it should turn out that the estate must have the money back for some unforeseeable reason (ex: debt), the early heir will pay it back← Second, the heir may petition the court to order the administrator to make the final settlement and close the estate← Court should order the estate closed unless the administrator can show cause why it should not be

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←← § 2.46 Final Accounts←← The petition on the final account is required to include the name and addresses of the people who the personal representative believes to be the heirs at law of the deceased person← The SOL on reopening the estate only applies to those who were made parties to the closing of the estate← A suit to determine heirship can help clear up any potential problems← When an heir shows up later, the court will ask if a reasonably prudent administrator would have found the heir← Service of process is given to all of the people named in the petition← In lieu of serving process, most sign a waiver and answer which shows that the heirs agree to the way the estate is being closed← After it is approved, the administrator writes himself and the attorney a check for the approved amount← § 2.47 Administrator’s Attorneys Fees – General Services←← Administrator’s attorney’s reasonable fees for necessary services rendered in good faith are a legitimate expense of administration and may be paid out of the funds of the estate← The court decides on a reasonable fee in the exercise of its sound discretion, considering the time the attorney expended as well as the difficulty of the work, the skill required to do it, the responsibility involved, the amount involved, the promptness of services, and the size of the estate← The chancellor should not authorize any payment out of estate funds for attorney fees rendered either ← Before the appointment of the administrator OR← For the sole benefit of the administrator’s personal interest in the estate as against the interest of other heirs←← § 2.48 Administrator’s Attorney Fees – Special Services←← Occasionally it will be necessary for an administrator to pursue a claim which is customarily handled by the claimant’s attorney on a contingent fee basis

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← Any such agreements between the administrator and his or her attorney should not be made without a prior detailed petition to the court and approval of the chancellor←← § 2.49 Administrator’s Commission and Expense←← Those services which the person performed as a lawyer should be compensated as a lawyer would be compensated← The non-legal services should not be compensated at a lawyer’s rate of compensation←← § 2.50 Reopening the Estate←← Interested people can reopen the estate for two years after it is closed as long as the issue on which the reopening is based was not brought up at the hearing of the final account←← § 2.51 Suits for Devastavit (Waste) Against Administrator and Surety←← Any heir, creditor, or beneficiary may institute proceedings for a devastavit against the administrator and the surety on his bond when it is believed that the administrator has neglected his duty and caused a loss to the decedent’s estate←← § 2.52 Recovery of Decedent’s Personal Property Without Administration←← Administration of estate is not required← The most important thing an administration does is put to rest claims against a creditor← To protect property holders and to permit the decedent’s heirs at law to take possession of the property without the necessity of a formal administration, the legislature has enacted legislation which authorizes ← A bank to pay the decedent’s nearest relative any sum to the credit of the decedent not to exceed $12,500

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← A savings association to do the same upon receipt of an affidavit and bond ← Any person indebted to the decedent or having property of the decedent may pay the successor (subject to some exceptions) and← Any person owing wages to a decedent may pay them to the decedent’s Group I or Group II relatives←← § 2.53 Gifts Inter Vivos←← The person who claims to own property by inter vivos gift has the BOP by clear and convincing evidence that there was a delivery of the property and the donor surrendered all dominion over it←← § 2.54 Gifts Causa Mortis←← Gifts made in contemplation of death← Ambulatory and can be revoked at any time in the donor’s life← Such a gift is subject to claims of creditors if the other property of the decedent is not sufficient to pay them← Land cannot be conveyed by a GCM←← § 2.55 Ancillary Administration←← MS does not allow ancillary administration for property in the state← However, the administrator of the estate of a MS decedent should concern himself with the recovery of personal property of the decedent located in other states← This must be done pursuant to the law of the other states and may necessitate an ancillary administration←← § 2.56 Joint Bank Accounts and Certificates of Deposit←← Funds in bank accounts held by two or more people will become the property of the survivor(s) upon the death of a joint tenant← Same rule generally applies to certificates of deposit← Intent is the crucial question regarding CDs

35

← If intent is clear that CD was jointly held with right of survivorship, that intent will be given effect←←←←←← Chapter 3: Wills ←←← § 3.1 Introduction←← A person can, with a valid will, make moot the law of intestate succession← This is the only chance for some people to have a shot at the big house, and they will try to find some way to attack the will when they are left out of a will←← § 3.2 Wills – Nature and Purpose of Writing←← The first step in the process of interpreting a will is determining whether the writing attempts to do what a will does←← § 3.3 Wills – Animus Testandi – Intent of Testator←← The document must communicate that it is the intent of the testator that the instrument make testamentary dispositions (only has legal validity upon the death of the testator)←← § 3.4 Ambulatory Nature of Will←← The will must be ambulatory, which means that the person who made the will is free to modify or revoke it at any time← If a will is not ambulatory, it is not a will, because that is what sets a will apart from other documents←

36

← § 3.5 Form or Title of Writing←← A writing does not have to be in any particular form to be a will← Ex: a personal letter, a scrap of paper, or the back of a certificate of deposit may be a will if the words written there are sufficient and were executed with the necessary intent← The writing does not have to be designated or entitled a will in order to be one← However, as with the form, the title given to it by the maker may provide evidence as to intent←← § 3.6 Will or Deed with Reservation of Life Estate←← Many cases in MS have regarded whether a document was a will or a reservation of a deed with a life estate← This occurs when it is not clear whether the intent of the maker was to make← A deed by conveying a future interest in the land which vest in the grantee upon delivery of the deed, though reserving in the grantor a life estate, the effect of which is to postpone only the grantee’s right of possession← A will by making no present conveyance of any interest in the land and to have the interest vest or the instrument be effective only upon the death of the testator←← Regardless of what it is called, if a document makes a testamentary disposition, it is a will← However, if the parties did not consider it to be a will and it was not executed like a will (because the parties did not realize the need to execute it like a will), it is not a will and the property will go by intestate succession←← MS Rule = If it’s in the form of a deed and is called a deed, the court must construe it as a deed unless the terms of the writing make it totally clear that no interest is passing until the death of the donor←←

37

← §3.7 Conditional Wills←← If the testator of the will wants the will to have permanence, he should be very wary about putting any language in the will which could be construed as conditional← Intention is to be collected from the language of the will← Declarations by the testator to the contrary of the condition in the will are not admissible←← § 3.8 Nuncupative Wills (Oral Wills)←← An oral will may be a valid conveyance of personal property provided many conditions are satisfied, but an oral will cannot convey land← The conditions (which can pretty much only be met by a Hollywood-type deathbed scene) are← The will must be made at the time of the testator’s last illness← The testator must believe that he is dying← The testator must actually be “dying” to the degree that he is unable to make a written will← The testator must intend for the spoken will to be his will (can’t intend for spoken words to written down as his will)← This must be shown by the clearest and most indisputable evidence← Two witnesses must testify that the testator called on some person present to take notice that the words spoken were the testator’s will←← § 3.9 Attested Wills (non-holographic, typewritten)←← An attested will is a will which has been attested to by at least two witnesses who have signed their names on the will← Attestation is an absolute requirement for the legal validity of the will when it is not entirely written in the handwriting of the testator←←← §3.10 Holographic Wills←

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← A holographic will is a will written entirely in the handwriting of the testator← It must be signed at the bottom← It does not have to be witnessed by anyone (no attestation requirement)← A holographic will may revoke or modify an attested will←← § 3.11 Joint Wills←← A joint will is a single document which contains the wills of two or more people← The declared intentions of each testator affects only his/her own property or his/her own share in joint property← An instrument which purports to be a joint will but which provides that it will be effective until the death of the survivor is not a valid will of either person← A holographic will may not be a joint will← In the absence of a contract to the contrary, a joint will may be revoked by the survivor←← § 3.12 Mutual or Reciprocal Wills←← These are wills which are executed in pursuance of an agreement between two or more persons to dispose of their property in a particular manner either to each other or to third persons← Ex: A and B make exactly same wills, but A uses B’s name and B uses A’s ← name← A joint will may, but does not necessarily, contain such provisions←← MS Rule = In order to prevent the survivor from changing his will which contains mutual provisions, it must be proven that there was a contract that the will would not be changed (Monroe v Holliman)← Other jurisdictions = the existence of a mutual will itself constitutes a contract←

39

← § 3.13 Duplicate Wills←← When two wills are simultaneously prepared and the testator and witnesses sign their names on both of them, it is valid evidence of the document← The execution of a document is what makes it an original← The problem is that you can revoke a will by tearing it up← Having two original wills can create a lot of uncertainty as to whether or not the surviving will has been revoked←←←←←←←← § 3.14 Foreign Wills←← A foreign will is the will of a person who was domiciled outside the state of Mississippi at the time of his death← Common Law ← When a person died without a will, the will had to be probated first in the state of domicile← Since the law of the domicile controlled the inheritance of personalty, then the person could come to MS and get the property and take it back to the state of domicile← However, no state was or is willing to give over its real property to the control of a foreign state← MS Law← Controls the inheritance of personal and real property ←← § 3.15 Soldier’s and Sailor’s Wills←← MS has a statute that says that any 18 year-old can execute a will if he is in the military or a soldier← At the time this statute was passed, one had to be 21 to make a will

40

←← § 3.16 Codicils←← The purpose of a codicil is to make some change to a previously executed will (even entirely revoking the will)← To be effective, it must be executed exactly as a will← It does not have to be the same kind of instrument as the will it operates upon; a holographic will may have a non-holographic codicil← A codicil must be signed, just as a will must be signed← If you mark through text, you must at least put initials besides markthrough← A codicil has the power to republish a will← A signed codicil attached to an unsigned will can make the unsigned will valid with the codicil’s changes← The codicil governs because it was executed last←← § 3.17 Contracts to Make a Will←← This almost always comes up in situations where an elderly person has requested that someone take care of them in exchange for a certain amount in their will←← Contractual Compliance← If a document complies with the requirements for a contract (terms are clear and certain, there is legally sufficient consideration), it is a valid contract← However, the MS Supreme Court has not appeared to want to enforce these contracts unless they are written←← Minority Rule← If a party never makes a will after contracting to do so, some courts just go ahead and make a will for the party← Majority Rule← Most courts (including MS) either← Specifically perform the contract as it should have been performed OR← Impose a constructive trust

41

←← Constructive Trust← Equity device that is employed when a person owns property that he should not have← Heirs at law have legal title to property, but the court says that because of the contract the testator entered into, the heirs are just holding it for the promisee← Court will order constructive trust to be executed (dissolved) and the person will transfer the assets of the estate to the person with whom the testator contracted←← Revocation← If a promisor made the will he contracted to make, but later revoked it, the court may enforce the contract by← Declaring will irrevocable and probating the will as originally written OR← Imposing a constructive trust←← Chapter 4: Execution of a Writing ←← § 4:1 Introduction←← A will is only a party’s right by way of statute ← It must be executed in accord with the statute or it simply is not a valid will←← § 4:2 Testamentary Capacity – Age←← In order to make a will in MS, a person must be at least 18 years old at the time the will is executed←← § 4:3 Testamentary Capacity – Sound and Disposing Mind←← Three Part Test for Sound Mind← The testator must← Understand what it means to make a will,

42

← Know who his beneficiaries are and his relation to them, and← Be capable of determining to whom he wants his property to be distributed←←←←← Lucid Intervals← Even if a person has been declared non compus mentus and has a guardian, it does not invalidate a will← The law has found that these people sometimes have lucid intervals← If a person is found to have a lucid interval, his alteration of the will at a later time when he is not lucid will be invalid←← § 4:4 Execution of a Nonholographic Will←← For a nonholographic will to be validly executed, the following requirements must be satisfied← The testator must sign the will, or someone else must sign it for the testator in the presence of the testator and at his expressed direction← If the testator does not sign the will in the presence of the attesting witnesses, he must acknowledge his signature to them when they attest his will← The testator, expressly or constructively, must publish the will to the attesting witnesses, at least when he does not sign it in their presence← The testator, expressly or constructively, must ask the witnesses to attest the will← The attesting witnesses must sign the will, and in the presence of the testator← The attesting witnesses must be credible←← § 4:5 Execution of a Nonholographic Will – Signed by the Testator←← A nonholographic will is one which is not wholly written in the handwriting of the testator

43

← To be validly executed, the instrument must be signed by the testator or someone else signing his name at his express direction and in his presence← The signature does not have to be the testator’s full name← In fact, initials have been ruled to be enough to be an acceptable signature←← § 4:6 Execution of Nonholographic Will – Acknowledgment of Signature When Testator ← Does Not Sign in Presence of Witnesses←← MS law does not require the testator to sign the will in the presence of witnesses, but the witnesses do have to sign the will in the testator’s presence← However, the testator must tell the witnesses that it is his signature when they attest the will←← § 4:7 Execution of a Nonholographic Will - Publication←← Publication is required to validate the execution of a nonholographic will← Publication is a communication by or attributable to the testator that this instrument is a will← Publication may be express and formal ← “this is my will”← Publication may be constructive ← someone speaks for the testator in his presence and says it is his will or ← the testator asks a person to write his will, dictates its terms, and signs it← At least a constructive publication is required when the testator signs the will outside of the presence of the attesting witnesses←← Tyson v Utterback

44

← Prior to this case, there was no doubt that either formal or constructive publication was required when the testator signed his will in the presence of the attesting witnesses← The Tyson court held that formal publication is unnecessary where not required by statute and that when a writing is signed in the presence of the witnesses it is not necessary that they know it is a will← Even so, the court in later cases has spoken of publication as though it were a requirement←← § 4:8 Execution of Nonholographic Will – Request of Witnesses to Sign Will←← A testator must request the witnesses, either by words or acts, to sign his will← The request may be by construction, action, or words← A request by the testator’s agent or attorney is sufficient if it is done in the presence of the testator and with his knowledge← This involves two requirements← A request for the witnesses to write their names on the paper and ← A representation that the paper is a will (same as publication)←← § 4:9 Execution of Nonholographic Will – Attestation by Two Witnesses←← The execution of a nonholographic will must be attested by two or more credible witnesses in the “conscious presence” of the testator← Attested = the witnesses actually have to put their signature on the document← Bachelor : the presence of a party is not enough nor is one signature from a notary public← Conscious Presence = if the testator could have changed his physical position and seen the signing of the will ←← § 4:10 Execution of a Nonholographic Will – Credible Witnesses←← The witnesses to the will must be credible

45

← Ex: they must be competent to testify← However, under FRE, almost everyone is competent to testify← Since a minor may testify, there appears to be no reason why he could not be an attesting witness ← No MS cases on point for this ←←← § 4:11 Execution of Nonholographic Will – Beneficiary as Attesting Witness←← If a witness is a beneficiary to the will, then he will have to give up his gift (though the rest of the will is going to remain valid)← This plan only applies if the beneficiary witness is needed to make up the required number of attesting witnesses←← § 4:12 Execution of Holographic Will←← A holographic will must be written entirely in the handwriting of the testator← Every single word does not have to be in the handwriting of the testator← A printed caption or title will not invalidate it← Signatures of witnesses are not needed, but they will not invalidate it← Mere Surplusage Rule: If there are words in the will that are not in the handwriting of the testator, it will not defeat the meaning of the will provided they are mere surplusage← Test: The will must mean the same thing with those words as it would without those words← A holographic will must be signed at the end of the document (void otherwise)← Anything below the signature is not a part of the will←← § 4:13 Attestation Clause←← All that the law requires from the attesting witness is their signature

46

← Therefore, a will which has all of the terms and has the signature of the testator is valid← However, it has been the practice of lawyers for a very long time to include at the end an “attestation clause”←← Today, the MS statute has been changed← Lawyers now include an affidavit at the end of the will ← It is negligence not to do so← You can get an affidavit from the attesting witnesses at the time the will is executed, making their attestation a part of the will← This protects the will in case you lose track of them and so you don’t have to go track people down to get an affidavit from them←← § 4:14 Affadavits of Witnesses – Self-Proved Wills←← As examined later in the text, a will may be admitted to probate upon an affidavit of at least one of the attesting witnesses setting forth facts that the will was validly executed and that the testator was of sound and disposing mind (self-proved wills)←← It appears that there is no good reason for not obtaining affidavits from the attesting witnesses at the time of execution of the will, and many good reasons for doing so←←← § 4:15 Date←← A will does not have to be dated though it is smart to put a date on the will, and there are situations where a dateless will is going to consequently be invalid← Examples← If a person has been of unsound mind for 3 years and it is unclear when the will was executed, then it may not be valid because it is the burden of the proponents of the will to prove its validity← A date would be essential in the case of multiple wills

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← A date may be important in light of the fact that a will is construed in light of the circumstances surrounding the testator at the time of execution←← § 4:16 Multi-Page Wills←← If the will that is presented at the time of probate appears to be facially intact (pages are same age, language flows from page to page), then the presumption is that it was the same will← Thus, it is of no avail that the witness does not know how many pages were in the original← If a contestant wants to show that the pages are inconsistent, the burden is on that person to prove that← To diminish the possibility of such an allegation, some lawyers like to have the testator to initial each page←← § 4:17 Incorporation by Reference←← A will can incorporate another writing which is not part of the will at the time that the will is executed, and the other writing will be considered part of a will even though it was not physically part of the will← Ex: all jurisdictions recognize incorporation of a trust by reference← In order to be incorporated by reference← The writing must be in existence at the time the will is executed,← The writing must be satisfactorily identified in the will, and ← The language of the will must disclose a clear intent on the part of the testator to incorporate it← Exception: MS Sup Ct has held that a holographic will cannot incorporate a nonholographic extraneous instrument (since the holographic will must be entirely in the handwriting of the testator)←← Tactical Wisdom in Execution←← If a person comes to an attorney for an initial conference on a will, no one else should be present. The older or more infirm the client is, the more important it is not to have anyone else there. It is in your client’s interest to protect the will on the grounds of undue influence

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← Never permit your client to take the will home with the promise that he will get it signed with two witnesses in his presence. It is part of your duty to conduct the execution of the will←← Chapter 5: Revocation of a Will ←← § 5:1 Introduction←← The making of a will is like getting married ← Certain requirements must be met to make one, and certain requirements must be met to terminate one← Revoking (like divorce) is not valid without complying with legal requirements←← Two Categories of Revocation (recognized by MS law)← Express Revocation - includes revocation by a physical act and revocation by a subsequent writing← 2 Requirements← An intent to revoke and← An act that complies with the revocation statute← Implied Revocation – a collection of leftovers from the common law, some of which are not actually revocations at all← Basic Requirement← Any act of revocation requires that the testator have a sound and disposing mind (just as he must in order to make a will)←← § 5:2 Revocation by Physical Act←← A will may be physically revoked by destroying it, canceling it, or obliterating it← Must have intent← Will be an inquiry← Signing is not required← Destruction = doing something to the paper rather than doing something simply to the words on the page← Cancellation = drawing over or across words

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← Obliteration = erasing, drawing lines through signatures, or blotting out words←←← § 5:3 Revocation by Subsequent Writing – Express Statement of Revocation←← If a subsequent writing is going to revoke a prior will or part of it, the revocation instrument must be executed as a will is executed← A will or any clause in the will may be revoked by a subsequent will, codicil, or declaration of writing← The vast majority of these subsequent writings are accomplished by another will which contains a revocation clause←← Effect of Revocation Clause←← If the instrument does not contain a revocation clause and it is validly executed, there are two cardinal principles that apply in MS← The revocation clause is effective from the moment of its execution ← This is not generally the case with wills, because a will normally is not effective to do anything until the testator dies← Ex: if a person tears up a revocation, it does not revive the first will← A clear statement of revocation is conclusive as to intent← The law will permit evidence to come in and say that although that is what the revocation clause said, the testator did not really mean it←← § 5:4 Revocation by Subsequent Writing – Totally Inconsistent Will←← If there is no inconsistency between two testamentary instruments, they go together to make a will and both are effective← The valid execution of a subsequent will which is entirely inconsistent with a prior will operates as a revocation of the prior will← The court will give preference to the second will← Whatever property is left after the execution of the second will is going to be executed in line with the first

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←← § 5:5 Revocation by Subsequent Writing – Partially Inconsistent Will←← If two wills are only partially inconsistent, and if the latter is a codicil of the former, they will be construed as one instrument with the codicil revoking the provision of the will only to the precise extent expressed or necessarily implied← If the wills are only partially consistent and if the latter is not a codicil of the former, the general rule is that both instruments are regarded as wills of the testator, and construed as one will←← § 5:6 Conditional Revocation – Express←← A testator may provide in a validly executed revocation instrument that the testator wants his will, or clause of the will, to be revoked if some future event occurs← If the event occurs, the will is revoked ← If the event doesn’t occur, the will stands←← § 5:7 Conditional Revocation – Implied Dependent-Relative Revocation←← Dependent relative revocation is a doctrine invented to permit a beneficiary to take under the first will when the court finds that the revocation of the first will was done under a mistaken belief that the second will would be effective← The doctrine makes the revocation conditional upon an event which did not happen so that there really was no revocation of the will←← DRR is not available when ← The second will contains an express revocation clause or← The second will is entirely inconsistent with the first will←← DRR is available

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← If there has been no express revocation by subsequent writing but the testator revoked by physical act, the court will entertain DRR←← § 5:8 Implied Revocation – Generally←← Although the revocation statute provides that a will or a clause of a will “shall not be revocable buy by “physical act or subsequent writing,” this is not the law← There are other ways, and they are referred to as implied revocations←← 4 situations where the court has said that a will has been impliedly revoked←←← § 5:9 Implied Revocation by Operation of Law← In MS, there is only one instance where implied revocation by operation of law is recognized ← If a person makes a will at a time when he or she has no children and the will does not provide for any children he or she might have, then the will is impliedly revoked ← if he or she has a child at the time of death or ← if, when a man dies, his wife is pregnant← The will may regain its effectiveness if the child dies without being married, without having a child of his own, or before reaching 21 years← A will cannot be impliedly revoked by ← Divorce← Divorce accompanied by a property settlement ← At least where the parties continue to live together after the divorce←← § 5:10 Implied Revocation by Inter Vivos Conveyance of Property← A testator who gives an inter vivos gift to someone that had been promised to someone else in the will is deemed to have impliedly revoked at least part of the will← Actually, though, it isn’t revocation at all

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← The will remains and the testator just doesn’t have the property to give the beneficiary named in the will←←←← § 5:11 Implied Revocation by Attempted Inter Vivos Conveyance of Property← Even if an inter vivos conveyance is not effective, the mere attempt to make the gift impliedly revokes the will (unless, of course, the attempted conveyance was to the person who is named in the will)← The statute indicates that if a will disposes of the testator’s entire estate, the only way to impliedly revoke the will is through an attempted inter vivos conveyance of the entire estate← This kind of implied revocation only happens when the inter vivos conveyance was by deed or some other written instrument←← § 5:12 Implied Revocation by Satisfaction← When a testator makes an inter vivos gift to a beneficiary that is equal to the amount the beneficiary would have gotten under the will with the intent to pay their inheritance ahead of time, this will operate as an implied revocation←← § 5:13 Revival of a Revoked Will←← An instrument which has been revoked but which is still physically in existence may be legally revived as a will in two ways← The testator may completely re-execute the will, complying with all statutory formalities required of the original execution OR← The testator may execute a codicil to the will declaring his intent to revive it←← Note: In MS, a will which has been revoked by a subsequent will is not revived by the revocation of the subsequent will← The earlier will was revoked the moment a subsequent will was executed, and unless the two previous requirements are met, the party simply dies intestate

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←← § 5:14 Contract Not to Revoke Will – Estopped←← A person can contract away his right to revoke a will←← Johnston v Tomme ← Testator told the lady that if she would come and take care of him, he would make a will leaving everything to her← He actually made a will that left everything to her← After she had taken care of him for a long time, he tried to revoke it and leave it all to someone else← Court held← A person cannot undo a will when a person has made a contract with another to give them an inheritance← Statute of frauds does not come into play because the will itself is the memorandum needed under the SOF← Chapter 6: Limitations on Testamentary Power ←← § 6:1 Introduction←← The power of a person in this state and nation to direct in a validly executed will how his or her property is to be disposed of upon the person’s death is very broad← It is a power conferred by statute← The legislature can put restrictions on it and has done so←← § 6:2 Protection of Surviving Spouse – Generally←← Common Law← Dower and curtsy were life estates that vested upon the death of one of the spouses ← When a person died who had property, his spouse was entitled to a life estate in some or all of the personal property← This life estate could not be taken away by the will←← MS Law

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← In 1880, MS abolished dower and curtsy and put in a system of will renunciation← Under the new system, a person does not have to leave something to his spouse in the will← Our renunciation scheme doesn’t ensure anything other than that the surviving spouse will not be left destitute← In fact, if the surviving spouse has enough of their own money, they will not get anything from the will← See Banks case←← § 6:3 Surviving Spouse’s Renunciation of Will←← MS Renunciation Statute ← The general idea of the plan is to make the will the only source of the surviving spouse’s rights to the property disposed of by the will, but also to give the surviving spouse a right to ← Renounce the will when it makes an unsatisfactory provision for him or her OR← To renounce it by law when it makes no provision for him or her at all←← Rule = If the will makes no provision for the surviving spouse, the will is renounced by operation of law← The surviving spouse is then entitled to that part of the deceased spouse’s estate he would have been entitled to had the will made a provision but had been renounced (intestate share)←←←← McBride v Hanes ← The right conferred by the statute vests in the other spouse immediately upon death, regardless of whether the spouse dies soon thereafter←← Mullins Estate v Mullins Estate

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← A personal representative of a now-dead surviving spouse who died after the first spouse died cannot file a renunciation statement on behalf of the now-dead surviving spouse← However, where the surviving spouse is not legally competent, the guardian can file a renunciation statement←← § 6:4 Determination of Surviving Spouse’s Share of Estate←← The effect of the plan is to give the surviving spouse the right to have at least as much property as she would have had if the spouse had no property of her own and if the deceased spouse had died intestate← The plan pertains only to the property disposed of in the will← In cases of partial intestacy, the surviving spouse takes whatever she would take by intestate succession unaffected by this plan←← Limited to the will← The renunciation system only applies to property that is devised or bequeathed in the will← The rest will go by intestate succession←← Procedure for Determination← Upon renunciation of the will, either by renunciation statement or by operation of law, the following procedure is used to determine what the surviving spouse is entitled to← Ascertain the value of the deceased spouse’s net estate← Determine the surviving spouse’s fractional “legal share”← Multiply 1 by 2← Ascertain the value of the surviving spouse’s separate estate AND← Subtract 4 from 3← This procedure gives the dollar value of the part of the decedent’s estate to which the surviving spouse is entitled← However, the surviving spouse is not required to take the inheritance in money←←←

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←←←←←← § 6:5 Ascertainment of Decedent’s Net Estate←← Value of the MS property passing under the will ← - debts← - expenses of administration← - estate taxes← - funeral expenses ← = Decedent’s Net Estate ←← Out-of-state land cannot be factored into the deceased spouse’s estate, because MS has no jurisdiction over the land of other states (Banks - neither should the estate taxes on that property be considered)← But, ALL personal property will be included in the value of the deceased spouse’s estate←← § 6:6 Surviving Spouse’s Legal Share←← This legal share is the fractional share of the decedent’s estate that the surviving spouse would have taken if the deceased spouse had died intestate, but it is not to exceed one half←← § 6:7 Ascertainment of the Surviving Spouse’s Separate Estate←← Value of all property owned by the surviving spouse at death of spouse (all=everywhere)← except property inherited from deceased spouse through intestate succession← except life ins. policies payable to surviving spouse as heir at law of decedent← - debts of the surviving spouse ← = Net Value of Surviving Spouse’s Separate Estate

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←← Original value of property owned by surviving spouse also includes← Property owned in joint tenancy w/ right of survivorship← Life insurance policies payable to the surviving spouse as named beneficiary upon the death of the spouse← The determination of whether funds are included in the surviving spouse’s separate estate turns on whether:← His or her rights began after the death of decedent (in which case they are not included) or whether← His or her rights were vested by contract before decedent’s death (in which case they are included)←← § 6:8 Determination of Surviving Spouse’s Inheritance←← The surviving spouse automatically receives his or her legal share if← The surviving spouse has no separate estate at all OR← The value of the separate estate is less than 1/5 of the value of his or her legal share ← If the value of the separate estate equals or exceeds the legal share, then ← the surviving spouse gets nothing in addition to what the will left him or her, and the attempted renunciation was a waste of time←← If the separate estate is less than the legal share but more than 1/5 of it, then← Legal Share← - Separate Estate← = Surviving Spouse’s Inheritance←← If the surviving spouse wants a share of all property, then← Legal share← - Separate Estate← ÷← Net Value of Decedent’s Estate← = Fractional, Undivided Interest for Surviving Spouse←

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← § 6:9 Renunciation Distinguished from Contest←← If a person contests a will and the contest is successful, the will is no good (validity)← When someone renounces a will, they are not saying that it is no good (fairness)← In renouncing, one says “If the will is good, then I renounce it”←← Contest: most a surviving spouse can get is all of the estate← Renunciation: most a surviving spouse can get is ½ of the estate←← Stockett flaw← There is one situation that can happen where the purposes of the statute are thwarted← The law of MS does not give the surviving spouse the right to set aside inter vivos transfers which have reduced the size of the estate← Ex: creating joint bank accounts with right of survivorship between you(decedent) and a person other than your spouse (son, daughter, brother, etc)← This is a way to give your estate away and get away with it←← § 6:10 Contracts Not to Renounce←← The right to renounce a will may be contracted away← However, there must be consideration for such a contract, and it must be of enough significance that the agreement is not unconscionable← MS Sup Court has indicated that it will look more closely at such agreements between spouses←← Parol evidence is admissible to show that there was no consideration for the contract not to renounce, even though the contract may have recited that there was other consideration← § 6:11 Protection of Surviving Spouse←← Intestate Situation

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← There are two rights of spouses other than the right to inherit their “child’s share” in an intestate succession← One year’s living allowance and← The right to exclusive use and possession of the homestead←← Testate Situation← In order for the spouse not to get the year’s allowance, there has to be a clear statement in the will that what is given in the will is given in lieu of the year’s living allowance← This provision of the will is going to stand unless the surviving spouse renounces the will← If the surviving spouse renounces the will, it seems clear that he or she will be entitled to one year’s allowance (recall that the one year allowance has no effect on the spouse’s fractional share)←← § 6:12 Protection of Surviving Spouse – Homestead←← The owner of a homestead may dispose of it in his will as he pleases, just like he can with the rest of the property← If the owner did not leave any ownership interest to his spouse, then the surviving spouse will have no interest unless the will is renounced← If a surviving spouse does renounce, he or she will take an intestate share←← § 6:13 Protection of Testator’s Children←← Two protections for children of decedent← Implied Revocation by Operation of Law← If the testator makes a will at a time when he has no child, but then later on he dies and he does have kids or his wife is pregnant, that will is void and the child or children will take by intestate succession← Children Born After Children Included in Will← If the testator has a child and he has more children after the will is made, the post-will kids will receive an intestate share of the will as long as they were← Unprovided for by settlement AND

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← Neither provided for nor disinherited, but only pretermittedly (inadvertently) omitted from the will← Majority Rule← Whether or not the child is pretermittent is answered by the intent of the testator← MS Rule ← In MS, we base intent upon what the will did for the children who were alive to determine what the after born children should have gotten←← MO Rule← Nonsensical rule is that if a will does not mention the testator’s children - whether or not they are alive at the time of the will – then the testator apparently forgot that he had kids at the time← No evidence to rebut this presumption will be allowed← If you don’t want your kids to have a part in the estate, you must leave them something like $5 or specifically disinherit them← Otherwise, the child will be entitled to his intestate share←← §6:14 Mortmain – Restrictions on Devises and Bequests to Proscribe Institutions←← Bequests and devises to proscribed institutions made by decedents who died prior to March 10, 1993 will be subject to the mortmain law in effect at the time of decedent’s death← Otherwise, MS no longer has a mortmain law←← § 6:15 Joint Tenancy with Right of Survivorship←← Joint tenancy with right of survivorship is not part of the decedent’s estate, but rather passes to the survivor upon the decedent’s death← Joint tenancy cannot be destroyed by the will of a joint tenant←←← Chapter 7: Probate of Will ←← § 7:1 Introduction

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←← The purpose of probating a will is to obtain an order or decree declaring that a certain instrument is the valid last will and testament of a deceased person← Until this order has been obtained, the will is nothing more than a piece of paper with writing on it← You cannot probate a photocopy of a will←← Robertson v Burton← In a lawsuit over property, a party wanted to put in a non-probated will← The chancellor let it in← The Sup Court held that it is inadmissible evidence because it has no legal validilty←← The Administration of the Testate Estate← The process of probating a will is also the process of beginning the administration of the estate← In an intestate situation, the process is begun by the appointment of a personal representative← In probate, if the person appointed by the chancellor was nominated in the will, then that person is going to be appointed as an executor← If the person appointed by the chancellor is not the person named in the will (because no one was named), then that person is called an administrator c.t.a.← There is a situation where (in very small estates), if land is devised by a will, it must be probated by a document of title only with the necessity of an administration of the estate←←←← § 7:2 Jurisdiction and Venue←← The Chancery Court has jurisdiction←← Proper venue is← First, in the county in which the testator had a fixed place of residence,

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← Second, in the county where land devised by the will is located, AND← Third, in the county where the testator died or where some of the personal property disposed of by the will is located←← § 7:3 People Who May Probate Will←← Any interested party with a direct, legitimate interest may probate the will←← § 7:4 Institution of Probate Proceedings←← The objective of the probate process is to obtain an order or decree from a proper court or judicial officer that the writing in question is a decedent’s valid will←← Two Ways to Probate←← § 7:5 Parties to Probate Proceeding – Common Form Probate ←← Common Form Probate (vast majority of probated wills)← Summary, expeditious procedure because ← no one is made a party to the proceeding except the people who sign the petition← no one is given any legal notice of the filing of the petition either (ex parte)← Process← When this procedure is used, the petitioner’s attorney (and you must have an attorney) takes the petition and the will to the courthouse and prepares an order for the clerk to sign which will admit the will to probate← Binding Effect← This CFP process is not binding on anyone except the people who have signed the petition← If there are people out there who would be heirs at law and might want to contest the will, the probating of the will in common form is not binding on them←

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← Preferred← In most situations, there is no one who wants to contest the will or no one who has grounds for contest← If someone does contest within two years, the fact that it has already been probated in common form establishes the prima facie case simply by proving that it was probated in common form←← § 7:6 Parties to Probate Proceeding – Solemn Form Probate ←← Solemn Form Probate← No statute says you can’t do a CFP and then a SFP unless, of course, a caveat had been filed← The only practical differences between a CFP and SFP are:← The petition includes the names and addresses of anyone who has standing to contest the will← To be a person with a right to contest a will, you must be able to show that you have a pecuniary interest that will be adversely affected if the will is discovered to be valid← Those people are served with notice of the proceedings← If one or more of the people who get the summons object to the probate, then there must be a will contest← If none of them decide to come in and probate the will, then there will be no will contest, and the will proceeds to be probated← And if they contest, the PFC for a SFP must be done as part of the trial, rather than in an ex parte proceeding (like you can do with CFP)← Two groups of people have a direct pecuniary interest in the will (or in its defeat)← Heirs at law who are getting nothing under the will or less than they would get by intestate succession← Beneficiaries under an earlier will←← § 7:7 Proponent’s Prima Facie Case for Validity of Will←← The proponent of the will must offer proof that this writing is the last will and testament of the deceased person ← Proof must be furnished that

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← The testator had a testamentary capacity AND← Over 18← Sound and disposing mind at time will was executed← The will was duly executed← If the will is holographic, then they will have to prove that the handwriting and signature belonged to the decedent← In nonholographic will, you must show that ← It was signed by the testator← It was published← It was signed by two witnesses in the presence of the testator and ← The testator asked them to sign his will ← The witnesses are usually the only people who can testify to this (along with the lawyer and the decedent)← Theoretically, anyone who was there could testify, but we have a statute which says that no one may be called to prove the due execution of a nonholographic will until the attesting witnesses have been accounted for← However, the law says that we don’t have to have live testimony← If there is no contest of the will at the time, an affidavit is sufficient to provide proof of the due execution of the will as long as everything that must have happened in order for the will to be validly executed is testified to in the affidavit←← § 7:8 Proof of Prima Facie Case←← Attested Will← Proof of due execution and testamentary capacity must be made by the testimony of at least one of the subscribing witnesses if← Such witness is alive← Such witness is competent to testify AND← Such witness can be produced to make this proof← If this cannot be done, other alternative exist (7:10)← Holographic Will← Proof that a testator had testamentary capacity may be made by anyone with personal knowledge of the testator’s mental condition and age at or near the time of the will’s execution

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← Proof of due execution may be made by persons familiar with the decedent’s handwriting or by handwriting experts←← § 7:9 Proof of Will by Affidavit←← The affidavits of attesting witnesses may be used to prove testamentary capacity and due execution as long as the will is not being contested← The affidavits of two disinterested persons familiar with the testator’s testamentary capacity and his handwriting may be used as well←← §7:10 Proof of Attested Will Without Testimony of Subscribing Witnesses←← When attesting witnesses neither can or will provide the necessary proof (and the proponent has demonstrated to the court that this is the case), the proponent can make out his PFC by ← Finding testimony from other people who have personal knowledge and can testify to testamentary capacity and due execution of the will OR← The proponent may prove that the signatures on the will genuinely belong to the testator and witnesses← SOL for Contest← Anyone on whom the will is not binding has two years to come in and contest the will←← § 7:11 Order of Validity←← When the clerk signs the order, that is as good as the chancellor signing the order← The will is then recorded← Although it is rare, orders can be revoked if the chancellor discovers that the orders are invalid←← § 7:12 Preventing Common Form Probate - Caveat←

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← A probate in a will contest has a tactical advantage if the will has been probated in common form because proof of that probate makes the proponent’s PFC in a will contest← An opponent of the will may prevent CFP and deny the proponent the advantage by filing a caveat (objection) to probate of a will← A caveat filed after the clerk has executed the order is too late, even though the chancellor has not yet approved the clerk’s action←← § 7:13 Probate of Nuncupative Wills←← May not be probated for 14 days following the death of the decedent← May not be probated until the decedent’s widow and next of kin, if residents of MS, have been summoned to contest the will if they desire←← If probate within 6 months of testator’s speaking words, then no writing requirement← If probate after 6 months of testator’s speaking words, then writing required←← § 7:14 Probate of Will of Soldier or Sailor Made During War←← Special allowance made, so requirements are← May be probated by chancery court in county ← where testator lived when he or she entered the armed forces OR← where testator owned land OR← May be probated on affidavit of any reliable person sufficient to satisfy the chancellor that ← the testator is dead,← the will was signed by the testator as his or her will,← the affidavit or testimony of the subscribing witnesses cannot reasonably be obtained, AND← there is good reason for the will to be probated←← § 7:15 Probate of Lost or Destroyed Will←← A lost or destroyed will should be probated if there is any way to do so

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← The proponent must establish the following← That the testator did validly execute the will← Proof of a validly-executed holographic will may be made by anyone familiar with the testator’s handwriting who saw the will and can testify that it was entirely written by the testator← Due execution of an attested will may be made by at least one of the subscribing witnesses if he can be produced ← If he cannot be produced, proof of due execution may be made by secondary evidence← That the testator at the time had a testamentary capacity← This can be made by subscribing witnesses or by others with personal knowledge of the testator at or near the time of execution← That the will has been lost or destroyed← Proof must be shown that there has been a thorough search of the testator’s papers and belongings and no will has been found← What the will provided, AND← The best way to make this proof of the contents is with a copy of the will← Proof may also be made by the testimony of someone who read the will and remembers what it said← Declarations of the testator may also serve as proof← That the will was not destroyed by the testator with the intent to revoke← If the will was last known to be in the possession of the testator, there is a presumption that the testator destroyed the will with intent to revoke← However, if a contestant of the will had access to it, the presumption can be defeated with slight evidence← But that inference can be overcome by evidence to the contrary←← Part of a lost or destroyed will may even be probated ← Furthermore, a revocation clause that is remembered from a lost or destroyed will also operates to revoke prior wills←← § 7:16 Probate of Foreign Wills←

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← A foreign will is a will of a person who was not domiciled in MS at the time of his death (regardless of where the will was made or executed)← Common Law ← See Chapter 3← MS Law← No will, foreign or otherwise, is effective as a conveyance of real or personal property located in MS until it has been probated in MS and found to be valid under MS law← The foreign will may be probated in one of two ways← In MS prior to probate elsewhere – just like a domestic will← First in another state or nation and then an authenticated copy of the will may be probated in MS← § 7:17 Duty to Probate a Will←← It is a felony to destroy or hide a will ← However, it is not against the law not to probate a will← Many wills are not probated each year, but most of the time, someone will probate the will←← Parker : If all the interested parties who could be affected by the will decide that they do not want to probate the will, then the will won’t be probated← However, a will which establishes a trust has to be probated←← § 7:18 Estoppel to Probate←← A person who wrongfully and fraudently conceals the existence of a will in order to take advantage of beneficiaries will not be permitted to probate the will later←← § 7:19 Statute of Limitations←← MS has no statute of limitations on the probate of a will← MS law is to the effect that the general statute of limitations does not apply← However, innocent purchasers for value of property will be protected

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←← § 7:20 Prior Probate of Earlier Will←← Fields : One cannot probate a subsequent will two years after a prior will has been admitted to probate (because our court interprets that to be a will contest)← This creates an unfair result because the party is not contesting the will, they are simply probating the decedent’s actual will←← Chapter 8: Will Contests ←← § 8:1 Introduction←← Contests are brought to determine whether this is the valid will and last testament of the decedent or not← Most wills are not contested because← No one wants to contest it← No one has the standing to contest it, or← There are no grounds to contest it← If either side wants it, they are entitled to a fact-finding jury whose decision is binding←←←←←← § 8:2 Persons Who May Contest a Will←← The party must have, at the time of the probate of the will, a direct pecuniary interest which will be detrimentally affected← Includes← Heirs at law who would receive more of the estate by intestate succession than they would under the will← Beneficiaries under an earlier will whose gifts under that earlier will are greater than their gifts under a later will

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← These parties do not have to establish the validity of the earlier will before they can contest the later will← The simply have to allege that there is an earlier, valid will← Persons who cannot contest a will← Administrators of allegedly intestate estates and executors under earlier wills ← Creditors ← An alleged illegitimate child may not contest the will of his alleged natural father unless he has established his right as heir at law of the father in a suit to determine heirship←← § 8:3 Instituting Will Contest ←← A will contest may arise in three ways← In response to a will probated in solemn form← A person may file a caveat before the will is presented for common form probate← The most frequently used way in which a will may be contested is for an interested person to file a contest within two years of the probate of the will in common form←← § 8:4 Indispensable Parties ←← All interested parties (all beneficiaries and/or contestants) must be made parties to a contest of a will; otherwise, another party could come in and contest the will after the first will contest (resulting in the will being valid for some and invalid for others)←← Moore : Regardless of whether or not the issue was brought up in the lower court, if all of the indispensable parties (all beneficiaries and contestants) to a will contest are not present, the chancery court simply does not have jurisdiction over the matter←←←←

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←←←←← § 8:5 Issues in Will Contest←← While “will or no will” is the ultimate issue, the real issues will center around the more specific requirements for the validity of the will ← the decedent’s testamentary capacity, ← the due execution of the writing, ← the undue influence of another person, ← etc←← Genna ← the heirs at law brought a will contest alleging that the decedent’s husband had caused her to drink herself to death← whether or not he caused her to drink herself to death had nothing to do with the validity of the will (the purpose of the will contest)← the heirs could bring a suit later on after the will was held to be valid which would decide whether he had caused her to drink herself to death←← Issues raised may be eliminated by a motion for summary judgment where there is no genuine issue of material fact←← § 8:6 Trial of Will Contest – Jury←← The role of the jury is the same, and its verdict is final and binding, as is that of a jury in a civil case in the circuit court← If no party requests a jury, the case will be tried to the court, and the court’s findings of fact are as binding as those of a jury would be←← § 8:7 Trial of Will Contest – Procedure←← § 91-7-29← In a will contest, the proponent has the affirmative of the issue← Ex: the proponent is like the plaintiff in a civil lawsuit b/c

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← goes first with the evidence ← must make out a prima facie case← has right to make opening statement first← has right to open and close the closing arguments← Prima Facie Case← Required prima facie case in a will contest (same as common form probate)← Proof of testamentary capacity← Proof of due execution← The proponent does not have to offer evidence which goes to negative undue influence (he only has to show the top two requirements)←←←←← § 8:8 Trial of Will Contest – Proponent’s Prima Facie Case←← Power of Common Form Probate← If at the time the contest has been brought, the will has already been admitted to common form, the proponent can make out his prima facie case by proving that the will in question has already been probated in common form ← The proponent must bring evidence from the clerk (papers which show that the probate in common form was properly done), and that will make out the proponent’s prima facie case← Proponent can then rest his case← A motion for a directed verdict will clearly be denied←← If there was a solemn form probate (or a caveat was filed) then the proponent will have to bring in affidavits and/or put on witnesses to prove his case←←← § 8:9 Trial of Will Contest – Contestant’s Burden to Go Forward With Evidence←

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← The contestant must bring in evidence that the will was not valid ← This does not mean that the BOP shifts to the contestant← It means that the burden of putting on evidence which makes a jury issue now belongs to the contestant (as opposed to a burden which overcomes the proponent’s case)←←← § 8:10 Trial of Will Contest – Further Evidence by Proponent←← If the proponent has made his prima facie case by putting into evidence the documents, rested, and then the contestants put on their proof (which makes jury issues) and rests, then the proponents can call any witnesses they may want to call without limitation←← § 8:11 Trial of Will Contest – Burden of Proof←← The proponent of the will has the BOP with all the issues← Most jurisdictions take the position that matters such as undue influence and fraud are affirmative defenses as to which the contestants have the burden of proof← MS treats them much like affirmative defenses by← Not requiring the proponent to present evidence on the matter to make a prima facie case,← Requiring the contestant to present evidence to support the matter, and← Permitting the proponent to present evidence on the matter after the contestant has rested←←←←← 3 Grounds for Contesting a Will ← Lack of testamentary capacity← Undue execution← Undue influence←

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← § 8:12 Grounds for Contest – Lack of Testamentary Capacity←← The parties must meet the 3-part test, and demonstrate whether or not the testator at the time the will was executed had the mental capacity to understand and appreciate← The nature of the act of executing a will← The natural objects of the testator’s gift and their relation to him← And whether the testator was capable of reasoning and planning how he desired to give his property←← The attesting witnesses can testify about this because they had a duty to pay attention to the soundness of the testator’s mind←← Declarations of the testator are admissible← Ex: testator may have said, “I am Napoleon”←← Undue Execution ← A layperson can testify in the case of a holographic will as to handwriting as long as they have pre-trial familiarity with the handwriting of the testator← Handwriting experts may also be used← Due execution of a nonholographic will requires meeting five criteria (see §4:5 and 4:10)← Attesting witnesses should be use to support the will← If attesting witnesses are unavailable, the proponents may ← Make the proof with the testimony of other people who have personal knowledge of what transcribed at the execution of the will; or← Prove that the signatures of the testator and the two witnesses are genuine← If one of the subscribing witnesses testifies against the will, it will simply be a jury question as to whom to believe←← Undue Influence (often used to attack a number of inter vivos transfers)

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← If a person with sound mind goes through the formalities of execution required by our law and executes a will and lives out their days and never revokes that will, the law accepts that will as valid← However, a will which is the product of someone else’s influence is not a valid will← If it can be demonstrated that the person felt compelled to do it, then this doctrine comes in ←←←←←← § 8:13 Grounds for Contest – Holographic Will Not Duly Executed←← Holographic will must be entirely← Handwritten by the testator AND← Subscribed by the testator ←← § 8:14 Grounds for Contest – Attested Will Not Duly Executed←← Due execution of an attested will requires the following← The signature of the testator or someone for the testator at his or her request and in his or her presence;← Publication of the will, at least where the testator did not sign the will in the presence of the witnesses;← A request that the witnesses sign the will;← The signatures of the attesting witnesses in the conscious presence of the testator; AND← Acknowledgment of the signature by the testator if he or she did not sign the will in the presence of the witnesses←← § 8:15 Subscribing Witnesses Testimony Unavailable←

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← A proponent is supposed to prove testamentary capacity and due execution of an attested will by which the testimony of at least one of the subscribing witnesses← If this testimony cannot be presented, then the proponent may resort to other methods of proof← If both subscribing witnesses are dead, incompetent, or cannot be found, ← then testimony obviously cannot be presented and the proponent should be able to proceed with other proof← If the subscribing witnesses can be physically produced, but cannot (because of memory failure) or will not (for any reason) supply the necessary testimony, ← then the proponent may likewise proceed with other proof← If the subscribing witnesses are beyond the jurisdiction of the court, ← it is unclear whether the proponent must obtain the witnesses’ deposition before resorting to other methods of proof← If attesting witnesses are present in court but cannot supply the necessary testimony because of memory failure, ← then the attestation clause or affidavit executed at the time of the execution would appear to qualify as a recorded recollection and to be admissible as proof of the matters contained therein←← § 8:16 Hostile Subscribing Witnesses←← If evidence has been presented from which it may be found that the testator did have testamentary capacity and that the will was duly executed, then the will may be found to be valid even though attesting witnesses testify to the contrary←← § 8:17 Undue Influence – Traditional Doctrine←← Influence which just amounts to suggestions or proposals, while they may have some influence, do not qualify for undue influence← They must destroy the testator’s free agency with their influence←← The evidence falls into four categories

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← The reasonableness of the will← Does the will do what a person would have expected the testator to have done?← Mental capacity of the testator← If the capacity is bad enough, the will is void← However, a person’s mind doesn’t have to be perfectly good for them to have testamentary capacity← The contestants will try to demonstrate that the person’s mind was not very good ← Ex: because of drug addiction, age, or illness← Activity in the making of the will← The court will look at whether the alleged undue influencer had anything to do with getting the will made← Relationship between the testator and the alleged undue influencer← The undue influencer must be in a dominant position in the relationship – a merely persuasive influence is probably not enough to show undue influence←← Summary← After all of this is considered, you must ask if reasonable minds would conclude, based on the evidence of the influence presented, that the testator’s free agency was utterly destroyed← The jury will be told that they must find upon a preponderance of the evidence that the will was not a product of undue influence←← § 8:18 Undue Influence – Confidential Relationship Doctrine (Croft)←← If the contestant can show that there was:← A confidential relationship between the beneficiary and the testator, AND← There must be a relationship in which the testator imposes trust and confidence in that person← A fiduciary duty is not enough to pass the confidential relationship prong

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← The beneficiary has some hand in getting the will made; then a presumption of undue influence will arise← Like the first prong, not much to prove this – all you have to do is drive someone to a lawyer’s office, and that is evidence that you had a hand in it← The court has said that suspicious circumstances can take the place of activity in getting the will made← In one case, a relationship alone was a “suspicious circumstance”← Then the proponent must show three things by clear and convincing evidence← The beneficiary’s utmost good faith← Fullest deliberation by testator← Independent consent and action←← This doctrine can be used to attack wills, deeds, creation of joint bank accounts, or any other type of inter vivos conveyance← With regard to deeds, you don’t even have to show activity in getting the deed made (ex: second part of contestant’s case does not have to be shown)←← Summary of Traditional and Confidential Relationship Doctrines← Traditional Doctrine ← Reasonableness of will← Testator’s mental capacity← Beneficiary’s activity in getting the will made← Relationship between the testator and the alleged undue influencer← Confidential Relationship← If contestant can show← “confidential relationship” between B and T, AND← B’s activity in getting the will made← Then, proponent must show, by clear and convincing evidence← B’s utmost good faith← Fullest deliberation by T← Independent consent and action ←← § 8:19 Fraud

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←← A person making a will may be the victim of fraud in two ways← Fraud in the execution← He may be deceived as to the contents of the will← Fraud in the inducement ← He may be deceived as to certain facts that affect how he disposes of his property←← Elements of fraud← Misrepresentation of facts,← Knowledge of the falseness of the misrepresentation, AND← Reliance by the testator on the misrepresentation←← § 8:20 Mistake←← A person making a will may be the victim of mistake in two ways← Mistake in the execution← He may be mistaken as to the contents of his will← A mistakenly executed will is denied probate, but the court can do nothing when a provision is mistakenly omitted← Mistake in the inducement← He may be mistaken as to certain facts that affect how the testator decides to dispose of his property← This is not grounds for contesting a will where the testator knew and approved of its contents← Vick : A will might be set aside on the grounds of mistake in the inducement← Where the mistake was caused by a beneficiary, AND← The misrepresentation actually influenced the testator to make a will he otherwise would not have made← Exception← If a situation comes up where a will says that a person leaves someone out of a will with a reason for why he left the person out, and it turns out that the reason isn’t true, that mistake will invalidate the provision← Ex: “Because my son died in the Gulf War, I do not leave him anything” --- but it turns out he was just MIA

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←← § 8:21 Contest of a Foreign Will←← If the decedent owned real or personal property located in MS, the decedent’s will may be probated here prior to its probate anywhere else, or it may be probated first in the decedent’s domicile and then probated in MS upon an authenticated copy←← When the will is first probated in another state and then brought to MS for probate on an authenticated copy, there exists in the other state a judgment that the will is valid← The effect of this judgment on a person’s right to contest a will in MS is that the judgment of the other state is conclusive if that court had jurisdiction over the parties and the subject matter← Ex: Woodville←← Under §91-1-1, the judgment of a foreign state is no more conclusive as to personal property than as to land and cannot preclude a contest of the will as valid conveyance of personal property located in MS← However, one case held that a person who contested a will out of state and lost could not again contest the will in MS where the only MS property affected by the will was personal property← Weems questions the staying power of this decision in light of the fact that neither party in that case brought up §91-1-1←← § 8:22 Loss of Right to Contest a Will←← The right to contest a will may be contracted away← Before a party can be deemed to have validly contracted away his right to contest a will, the court must ask← Were the parties competent?← Was there fair and accurate representation?← Were the terms clear?← Estoppel← You may estop yourself from contesting a will by accepting a gift in it← Courts say one of two things

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← You have, by accepting a gift from the will, expressed your belief in the validity of the will OR← We will let you contest the will, but you will have to give the gift back (MS)← If you have signed a petition asking for a will to be probated, then the courts will accept your judicial position and will not allow you to change your mind on it← Fraud or misrepresentation on the part of another party will not estop an effected, interested party from contending a will (Woodville)←← § 8:23 Forfeiture of Legacy for Unsuccessful Contest←← When a will has a provision that any contestant of the will is going to lose their gift, courts have taken two positions← If the will is upheld, the court will carry out that clause← Other courts hold that they are not willing to prevent people from litigating legitimate issues← However, if they contest the will and they do not have grounds (probable cause), they will forfeit their portion of the inheritance←← § 8:24 Rules of Evidence in Will Contests←← Affidavits are normally not admissible into evidence in court, BUT they are when the will has been probated in common form←← Statements made by the testator, like all other out-of-court statements, are hearsay when they are offered to prove the truth of the matter asserted← However, two exceptions eviscerate this rule← State of mind exception (Rule 803 (3))← Statements of the testator are simply not subject to the hearsay rule← Privilege (Article V of the Rules of Evidence)← Statements made to an attorney in the context of drafting a will are admissible←←

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←←←←←←←← Chapter 9: Administration of Testate Estate ←← § 9:1 Appointment of Executor or Administrator c.t.a.←← The law gives a testator the right to designate in his will the person(s) he wants to be in charge of the administration of his estate and carrying out his will← If the person has been named in the will, the court will appoint that person (assuming that the person wants to do it)← The person has 40 days from the death of the testator to decide whether he or she wants to do it← If the will doesn’t name anyone or the named person doesn’t want to or can’t do it, the court will choose an administrator c.t.a.← Use same procedure as intestate succession←← Effect of probate← The probate of a will replaces the law of intestate succession← The administration is begun by the probate of the will and by the court appointment of someone to be the executor←← § 9:2 Oath and Bond←← The letters testamentary will not issue to the executor until he has taken an oath← If the testator has not relieved the executor of the duty to pay bond, the amount of a bond in a testate estate must be an amount equal to the full value of the estate (at least the part that has been entrusted to the care of the executor)← The premium for the bond must be paid by the estate

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← This is why the bond is usually waived←← § 9:3 Executor’s Rights and Duties – Generally←← The executor must follow the provisions of the will, but he must administer the estate in line with the law of intestate succession if the provisions of the will are unclear← Some matters cannot be controlled by the will← Executor must publish notice to creditors even if will directs executor not to← Creditors properly presenting claims must be paid regardless of what the will says← A surviving spouse is entitled to his or her renunciation rights although the will provides that the surviving spouse is to get nothing← Executor is not an insurer and is not responsible for errors of judgment← Executor/Administrator cta’s duty is basically a negligence standard← Obligation to do what a reasonable prudent person in those circumstances would have done←← § 9:4 Inventory, Appraisement, and Accounts←← Appraisement, inventory, and accountings may be waived, saving the estate some money← The vast majority of wills will waive bond, appraisement, and inventory← Note that the personal representative is required to make annual accounts if the estate is kept open more than one year←← Harper : When others rightfully assert standing based on maladministration, the personal representative must be able to show, after an accounting, that he did what a reasonably prudent businessman would have done in regard to the will←← Unlike bond, there is no statute which says that you can waive inventory and appraisals← However, there are many cases saying one can waive inventory and appraisals and no cases saying one cannot

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←← § 9:5 Payment of Testator’s Debts←← This is substantially the same as payment of an intestate debt (the administrator is required to make a reasonable inquiry and use due diligence in determining the payment of debts)← Once he knows who the creditors are, the executor must write a letter and inform them all← Then, he must file an affidavit saying that it has been done← Finally, the executor must publish a notice to creditors in the newspaper←← Rare exception← If the will says, “I want my executor to pay my debts just as speedily as is possible,” the executor must pay those debts if they have been probated (unless the will has a provision waiving the probate requirement)← Otherwise, just like intestate where administrator is not entitled to pay claims that have not been timely and properly probated←← If a will goes so far as to say exactly what the testator wanted paid, then the law says that the creditor has effectively become a beneficiary← Testator may specify the property that he or she wishes sold to pay the debts or the fund from which the testator wishes them paid← If the testator does so, his or her executor must follow the testator’s directions even though different property would have been used had there been no directions←← Estate taxes shall be paid on a pro rata basis MS 27-10-7← If tax is 40%, then everyone who inherits from the estate pays 40% of what they inherit←← § 9:6 Homestead Rights←← If a wife or husband owns the house in which they live with their spouse, they have the right to leave the homestead to whomever they wish←

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← The surviving spouse has the right to exclusive use and possession of the homestead as long as he or she remains unmarried if he or she← Owned an interest in the homestead property along with the deceased spouse← Was left an interest in the deceased spouse’s will OR← Obtained an interest by renouncing the will of the deceased spouse and taking an intestate share←← Remaining question← Does the surviving spouse have the right to exclusive use and possession of the homestead if he or she has no ownership interest in it?← Even though he or she has no ownership interest, dicta in two cases says that he or she still has the right to exclusive use of the homestead unless he or she gets married← Since one spouse cannot sell or convey away the property without the other spouse’s consent, it only makes sense to carry this principle past the death of one spouse← Weems doubts this outcome if this situation actually comes before the court (if entirely owned by someone else, no way to get part of it)←← § 9:7 Interpretation and Construction of Will←← When there arises a question about what a provision in a will means or about what the testator intended to be done, the court which admitted the will to probate may be asked by any interested person to interpret or construe the will← Some authorities make a distinction← Interpretation = process of discovering the meaning or intention of the testator from permissible data← Construction = process of assigning meaning to the instrument when the testator’s intention cannot be fully ascertained by interpretation← MS Rule = interpretation and construction are synonymous←← Black letter rules and notes← In a construction case, the court tries to harmonize the provisions in the will and find the dominant intent of the testator (no jury)

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← If, after looking at the will, the court still feels that the meaning is not clear, then the court will declare the will to be ambiguous← Then the court must use extrinsic parol evidence to determine the dominant intent of the testator←← § 9:8 Evidence of Intent – The Will← A court must consider the entire instrument, giving due consideration and weight to every word← If there are codicils, the will and the codicils should be considered together← Omitted words may be supplied where they are clearly implied or when necessary to effectuate the testator’s expressed intent← The will must be read in the light of the circumstances surrounding the testator at the time the will was written ←← After a thorough examination of the will, the court may conclude that the intent of the testator is clear and proceed to state what the intent was without considering any other evidence or applying any rules of construction←← § 9:9 Ambiguity←← There are two kinds of ambiguity← Patent ambiguity : a will may be ambiguous on its face← This rarely happens, but when it does it almost always is in the case of a holographic will, because lay people typically are not accustomed to expressing themselves well← Latent ambiguity : a will may be perfectly clear on its face, but when one (executor) tries to carry out the will, it cannot be done←← § 9:10 Extrinsic or Parol Evidence←← Extrinsic evidence is not admissible unless and until the court finds that the will is ambiguous← However, there must be at least two exceptions← 1) the court is to read the entire will in the light of the circumstances ← surrounding the testator at the time the will was written

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← Shown only by someone’s testimony← Seems that this kind of extrinsic or parol evidence would have to be admissible in all will construction cases ← EXCEPT those where the court found that no conceivable set of circumstances could affect the meaning of the will← 2) a latent ambiguity involves a will which is clear and unambiguous on its ← face, but which proves to be ambiguous when applied to external facts← Seems to be impossible to show the court that there was such an ambiguity without proof of these extrinsic facts by parol evidence←← § 9:11 Rules of Construction←← The court also must take into mind rules of construction← Weems thinks that the way that the rules of construction really work is the judges decide how they think the case should come out and then find rules of construction to support their conclusion← Therefore, the first part of your argument is to try to convince the court that your position really was the dominant intent of the testator, and after making that case, you throw in some rules of construction that the court can cite if they want to rule on your side ← Ex: the intent of the testator controls, testator’s will must be gathered from the entire text of the will, a will must be construed in light of the circumstances surrounding the testator at the time the will was executed← Note that trying to use case law on all fours is almost always a fruitless exercise in this context, because “no will has a twin brother”←← § 9:12 Construction of Will - Identification of Beneficiary←← The designation of a beneficiary will be sufficient as long as the name and description used will, when applied to the facts and circumstances, identify the person the testator intended (full or legal name not required to be used in will)← If the provisions of a will are found to apply equally to two or more persons, declarations of the testator are admissible

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← If, after that, the court is still unclear – then the court will hold the gift void for uncertainty←←←← § 9:13 Construction of Will - Identification of Property←← When a will is ambiguous with regard to the property which the testator is devising, the court will try to determine the dominant intent of the testator←← However, where real property has been devised by definite description, the rule has been that parol evidence is not admissible to contradict or vary a mistaken description and the only way to correct a mistake is by looking to another part of the will← Some relief from this rule has been provided in the rule that the erroneous part of the description (Ex: I give the Northeastern half of my land to Joe) can be eliminated, and if the part remaining is sufficient to identify the property, the gift will be upheld←← § 9:14 Lapse of Gifts←← When a beneficiary under a will dies before the testator and the testator does not enact a codicil to deal with the change in circumstances, the effect of this “lapse” is that the gift will be treated just as though the testator had revoked the gift← Anti-lapse statute (exception)← If the beneficiary is a descendant (child, grandchild, etc.) of the testator and the beneficiary is survived by a descendent who survives the testator, the gift will go to the original beneficiary’s descendants←← When a gift of personalty or real property lapses, it goes to the residuary beneficiary if there is one and to the testator’s heirs at law if there is not←

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← If the lapsed gift was the residuary estate (Ex: the deceased beneficiary had been given the entire residuary estate), it goes by intestate succession←← If a will says, “I leave the rest of my estate to my three sisters,” and one of them dies before the others, the lapsed third will go by intestate succession←← Residuary Estate = the part of the decedent’s estate remaining after payment of all debts, expenses, statutory claims, taxes, and testamentary gifts (special, general, and demonstrative) have been made←← § 9:15 Class of Gifts←← When, in a will, there is a provision which says that the testator leaves real or personal property to a group of people (Ex: nieces and nephews, $100 for all members of the Vicksburg Rotary Club), those are considered to be class gifts←← Two questions come up← Is it a class gift or a gift to individuals?← Even when members of a class are named individually, the gift will be held to be a class gift where the testator was group-minded (Cain)← When individuals are named, there’s a construction presumption that the will was intended for those people← The construction presumption can be overcome if the individuals are part of the same larger group← When is the membership in the class ascertained?← The beneficiaries will be the people who are in being and members of the class at the time of distribution←← Anti-lapse statutes apply to class gifts←

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← Branton v Buckley – when a testator leaves a life estate with the remainder vesting in a class, a remainder interest vests in the beneficiary immediately upon the death of the testator, even if remainder does not actually transfer until after the death of the beneficiary←← § 9:16 Classification of Testamentary Dispositions of Personalty←← Issue : What property will be used by the executor to pay the debts, expenses, and taxes of the estate?← Purpose : If there’s no way for the court to determine the intent of the testator, then the court will resort to a classification of gifts system← Personalty : There are four types of personalty← Specific bequests = a gift in a will of a particular piece of personal property identifiable from all others← General bequest = a gift of a certain amount of personal property out of the estate but not distinguishable from any other piece of property in the estate← Ex: “a hundred head of cattle”← Demonstrative bequests = this is a money gift charged on a specific fund and directed to be paid out of that fund← If the specific fund is insufficient, it becomes a general bequest← Ex: “I leave $10K payable out of my IBM stock”← Residuary: This happens when personal property is given through a clause which gives the remainder of any unwilled property to a certain party← Devises← There is no such thing as a demonstrative devise← Otherwise, the classifications are the same←← Uniform Estate Tax Apportionment Act : Provides that federal and state estate taxes must be apportioned among all persons interested in the estate in the proportion that the value of the interest of each person bears to the total value of the estate (unless the decedent has a will and it provides otherwise)←← § 9:17 Classification of Testamentary Dispositions of Realty

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←← A testamentary disposition of land or an interest in land is called a devise← A devise is specific when a particular parcel of land is given, such as “my home at 100 Church Street”← A devise is residuary when it passes pursuant to a gift of “all of the rest and residue of my estate”← Several kinds of devises are general, such as “100 acres of land” and “all of my land”←← § 9:18 Abatement←← The law of abatement concerns how the executor determines which property to use to pay these expenses and in what order property is to be used←← Abatement is necessary in the absence of specific directions in the will where the court will undertake to construe the will to try to determine the testator’s intent as to which property should be used← If the intent is not clear, the court will fall back on this system←← Order of abatement← Property which the testator intended in will to use for expenses← Property not disposed of in the will at all (personalty first, realty second)← Personalty← Residuary first← General personalty← Specific and demonstrative personalty← Realty← Residuary← General ← Specific←← § 9:19 Exoneration←

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← This deals with how a particular debt is to be handled when the debt constitutes a lien on a specific piece of property← Ex: a testator gives a car to someone, and the car was financed ($2K is left to pay on the car) – this usually comes up in real property with mortgages on them← It all comes down to the testator’s intent, which will be carried out if it can be ascertained← Issue: Should the estate be required to pay off the debt?← Rule : If there is no intent to the contrary, specific gifts of personalty and gifts of real property are to be exonerated out of the personal estate so the beneficiary takes the gift free of the encumbrance← Secured Creditors: A secured creditor of an estate can stand on the security without having to probate it and an heir retains the right to have his gift exonerated, so the executor is under the duty to pay such a claim← § 9:20 Ademption←← Ademption = prevents a beneficiary from getting a gift which the testator had left to the beneficiary in his or her will←← Two Kinds of Ademption← Ademption by Extinction← When the testator in his lifetime disposes of a piece of property, the testator has specifically devised or bequeathed in the will← The same rule applies if the property is either lost or destroyed←← Effect: The gift fails since the testator didn’t own the property when he died←← If the gift can be construed to be general, the court will try very hard not to classify it as specific so that the beneficiary will get the gift← This usually comes up in the case of stock that has been willed←← Ademption by Satisfaction← When the testator, by payment or gift in his lifetime, confers on a legatee the benefit which the testator had prepared to give by will under a general demonstrative legacy

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←← Effect: The legatee does not receive the gift in the will←← There can’t be an ademption by satisfaction by an event that occurred before the will←

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