Winter 2014 Professor MaurerWills and Trust Outline

WILLSChapter 1: Probate and Gross EstatesI. Terminologya. Heir (Heir at law): A person entitled to take under the laws of intestate succession. b. Devise: The gifting of real or personal property.c. Legacy: Was a historical gift in a will of a sum of money. d. Bequest: the giving of personal property. (Florida makes no distinction between devise, legacy, and bequest)e. Administrator: a person assigned by the court to administer an estate when decedent died intestate.[footnoteRef:1] [1: Florida calls everyone a personal representative regardless of testate or intestacy or sex. ]

f. Probate administration: The process of administering a decedents testate and intestate property. g. Probate of a will: The process of establishing the validity of a will and admitting it to probate. h. Curator: A person designated by the court while a personal representative is given authority.i. Express trust: An intentional agreement that separates legal and equitable title to property and provides for management of that property for the benefit of the trusts beneficiaries. An entity where one person holds wealth for the benefit of another. Trustee holds legal title and beneficiary has equitable title. Can be established during life (inter vivos trust) or in a will (testamentary trust). j. Object of the power: The eligible recipients. k. Taker in default: Usually selected by the donor to receive the property if the power holder fails to exercise the power. l. Durable Power of Attorney: Authorizes one person (agent) to act for another (principal). m. Designation of healthcare surrogate: authorizes one person to make medical decisions for another. n. Living will: indicates an individuals desires regarding life-prolonging procedures in situations that involve terminal medical conditions, end-stage medical conditions, or persistent vegetative states.o. Residuary clause: A testamentary clause that disposes of any estate property remaining after the satisfaction of all other gifts. p. Letters of administration: the legal document that the PR uses throughout the probate process to prove that he or she has authority to manage the estate. II. Wills and Constitutional Rights to DeviseA. The Right to Devise Rule: There is no U.S. Constitutional right to devise, rather a Florida Constitutional right to devise. (Shriner Hospitals v. Zrillic) Mortmain statute (abolished): Charitable devises made within 6 months prior to death, if survived by spouse or descendants, are voidable. Legislature wanted to avoid people making irrational decisions prior to deathtrying to buy themselves into heaven. The test used was whether the state has a legitimate interest that is reasonably necessary to limit the property rights guaranteed by FL constitution. Hypo: Fred signed a will leaving $50k to SBCA and everything else to his sister today. He dies. If mortmain statute was still in place is this the situation that the legislature intended to avoid? No. Thus it was overbroad. Encompassing situations not relevant to their intent. Person can either voluntarily choose not to exercise his right to devise or lack mental capacity to do so. To avoid some of the restrictions of a will, you can establish a trust. The laws governing Wills & Trusts are mostly state law.B. Will-Related Issues Consequences to admitting a Will into Probate: i. Beneficiaries have no interest in a Will, and the Will has no impact, until the Will is admitted to probate (a judge accepting the Will as valid). ii. Once the Will is admitted, the decedents property belongs to the estate. Admission of the Will does not automatically give the beneficiary possession of any propertythat only happens after the will has been admitted and distributed, although the title will be in the beneficiaries name possession doesnt occur immediately. iii. **You must assert any rights to an estate in probate or you will lose them**. There are time limits imposed on claims. The PR is supposed to place an ad to all creditors giving them a specific amount of time to file any claims. Anything thereafter is barred from collecting. C. Probate Estates Probate Estates (state law conceptreferring to property subject to administration)i. Items included in the probate estate are described based on characteristics rather than specific listing. ii. Probate is referred to the entire process of administering a Will, from recognizing the validity of the estate and the administering of the estate (dealing with creditors, etc.). iii. Probate is filed in the county where the decedent resided.iv. Why do we have probate? The purpose of probate is to provide a smooth process for a smooth transition of ownership of assets that decedent owned at time of death, to the people who are entitled to get them (by law) whether by shares, proportion, etc.v. Definition/Test for determining what probate property is: Probate property includes things of value that the decedent owned at death, solely in the decedents name, on which there is no designated beneficiary who survived the decedent, as long as the thing of value is not the decedents protected homestead or non-Florida real property. (value doesnt need to be great, it just needs to be worth something, anything) Assets may include: patents, real property, cattle, boards, planes, jewelry, bank accounts, stocks, bonds, shares on LLC, and contract rights (except for contracts that are for personal service). All contracts should include language that makes their heirs binding on contract. Automobile insuranceif decedent died in an auto accident, take a look at the auto insurance policy because there may be benefits payable to the decedent (i.e. UM coverage). If check from a claim appears after decedents death then that is probate property. Check if decedent solely owned it and if not then the type of ownership. Those with rights of survivorship go to the living person. If tenants in common, then property will be split. Damages covered by the FL Wrongful Death Act are not part of probate or gross estate. vi. Venue of Probate proceedings: A probate proceeding can be initiated In the county where decedent was domiciled; (1) Domicile: **Very Important** the composition of probate estates are affected by whether the decedent is domiciled in Fl. (Domicile same as residence for purposes of probate). FS 733.101i. Domiciliary: In FL, domiciliary probate is the proceeding that occurs for a decedents estate in the state in which the decedent was domiciled (principal residence).1. For decedents who were FL residents with real property out-of-state, since FL lacks jurisdiction, there needs to be a separate proceeding in each state where property was owned called an ancillary administration probate. (2) Non-domiciliary: Can own property in FL. (3) Note: Do NOT assume that people are residents of FL. They may own property here but are still not residents of FL. (4) Hypo: Do a husband and wife have to have the same domicile? No. They can live in different places and be domiciled in different counties.(5) Hypo: Husband and wife separate. Husband moves to Jacksonville from Broward County. Husband dies, where is his domicile? Jacksonville. In the county where decedents property was located; or (1) Hypo: What if dead guy lived in Michigan but owned property in Miami, FL. Can we start a probate here? Yes under FS 733.101 (b), you can start the probate in the county where the decedent owned the property. (2) Hypo: What if he owned several properties in different counties within Florida? You can start probate in either county, doesnt matter. The county of where decedent is owed any debt.(1) Hypo: What if dead guy didnt live or own property in Florida; can a probate be started in FL? No, unless the debtor resides in Florida. Propertyi. Real Property is subject to probate in the jurisdiction in which it is located. ii. Tangible and intangible refers to personal property that is subject to probate in the jurisdiction in which the decedent is domiciled at death. Hypo: If decedent owned property in FL and NC at time of death, it may be subject to probate in both states. The FL proceeding will not cover properties in both states, NC will only administer those from that state. Anything that is on the decedents person at the time of death is assumed to be the decedents. Although, that may not always be the case. If its found not to be his, then it is subject to claim by its rightful owner. What is tangible property? Anything of value that you can touch. Not everything that you touch can be of value. It cant be something that represents something of value (i.e. check book or paper). (1) If decedent owned farmland, as long as the crops are affixed to the property they are a part of the real estate. If they are removed (picked them or sold rights to pick them) then they are personal property. iii. Florida is not a community property state, but we have community property laws. Usually pertaining to people that are married and move to FL from a community property statethose community property attributes remain. Hypo: John and Sarah lived forever in Cali (community property state). They bought a house and sold it for $3m. John came here, while Sarah stayed in Cali finishing work. While in Fl, John opens up a brokerage account for the money cause Sarah isnt here. Sarah comes and John dies. Johns Will leaves everything to his children. Who gets the money? Sarah. The money is community property. She gets $1.5m and a portion of the remaining $1.5m under statute. Collateral Claim Rule: If you fail to timely object to a Will or codicil (outside 90 days), after proper notice, you cannot engage in a collateral attack on the Will in some other forum because it will be invalid.i. Hypo: Fred played chess with Dave the night before Fred died. Dave owned the chessboard. Dave would have to initiate a claim in the probate court in order to retrieve ithe would not be able to wait until the proceeding is over with to then sue Freds wife. ExceptionExtrinsic Fraud: The act of preventing someone (through trickery) from asserting a claim/right in probate court by fraudulent means. (1) Hypo: PR promises to pay creditor and tells them not to bother filing a claim. 90 days pass and PR says oops no money. That is extrinsic fraud because they were lied to and kept from filing a claimif not for the fraud, the person would have brought a claim. Intrinsic Fraud: Fraud within the actual probate process. PR lies to the court about who owned the chess set. The person needs to straighten it out in court otherwise barred. D. Florida Resident Estates Upon Death: When a Florida resident dies, up to 3 possible types of estate proceedings may be initiated: Probate estate: (discussed above) Taxable estate: The IRS cares about. Includes the probate estate plus other things. The current tax law is when a person dies, if total value of taxable estate is less than $5,340,000 then not taxable. Elective estate: Includes 9 categories of assets. Including probate estate. If decedent dies a FL resident, and spouse is not happy with what they are getting, they have the right to demand an elective share. To determine, they must be able to compute the elective estate.E. Property That is Not Subject to Probate If the decedents estate is specifically made a beneficiary, those proceeds will be included in probate estate (i.e. life insurance proceeds). Jointly Owned Property with Survivorship Rights Tenancy by the Entirety: If a husband and wife take title to property in both names, FL law presumes they own it as tenants by the entirety (unless instruments state otherwise). To avoid they must state their desire (i.e. tenancy in common). If tenancy by the entirety, then the surviving spouse takes all of the property by operation of law. Reasons why you should have a Will if you own property as tenants by the entirety:(1) DeathWho will die first?! The identity of the ultimate taker depends on which spouse dies last. i. Ex: H has prior marriage and family with kids. H remarries. W2 has kids from prior marriage. H and W2 owned a home as TBTE. Upon Hs death, without a will, his property will go to W2 and then possibly her heirsnot the same heirs of H.) (2) Simultaneous deathUnless provided for by Will, it passes to intestacy, possibly to separate groups of relatives. (3) Divorceupon divorce property converts to tenancy in common, under which each owners interest is part of his or her probate estate. Joint Tenancy with Right of Survivorship: The surviving tenant takes the property by operation of law. If there are more than two tenants, the surviving tenants take the property by operation of law and continue tenancy for the remaining tenants. If owners arent married to each other, FL requires there to be unequivocal language creating a right of survivorship in the document. Otherwise, it will be treated as a tenancy in common and decedents share will be subject to probate estate. (**2 or more ppl then presumption is tenancy in common w/o survivorship unless otherwise indicated**)(1) Hypo: Ted owned Blackacre as a joint tenant w/ right of survivorship with his sister Suzy. In his Will, he devised that property to his son Junior. Suzy takes blackacre instead of Junior. If Ted owned no property other than Blackacre then Junior is disinherited. Special Rules Governing Survivorship Tenancies: If two or more persons own a bank account, unless a document states otherwise, a right of survivorship is presumed to existneed not contain survivorship language. Presumption is rebuttable only by proof of fraud, undue influence, or clear and convincing proof of a contrary intent. FS 655.79 Tenancy by the entirety ownership provides for creditor protection, at least with respect to creditors of only one tenant. Deposit accounts made in both married couples names shall be considered a tenancy by the entirety unless indicated otherwise in writing. FS 655.79 Pay on Death and In Trust for Accounts A Pay on Death Account (POD) is created when one person opens and funds a bank account at a financial institution and designates 1 or more persons to receive the account assets upon his death. FS 655.82 Transfer on Death (TOD) refers to securities. POD is a contract between the owner and financial institution and as such need not comply with any formalities. Beneficiaries have no rights to the account until the owners death. If no beneficiary survives the owner then the account is probate property. A corporation qualifies as a person and thus may be the beneficiary of a POD account. FS 655.82 Life Insurance Proceeds A life insurance is a contract between the policy owner/purchaser and the insurance company that issues the policy. If the decedents estate is specifically made a beneficiary, those proceeds will be included in probate estate (i.e. life insurance proceeds). There could potentially be 3 persons involved in a life insurance policy: (1) Policy owner (applies for and pays the policy); (2) Beneficiary (named by the owner); and/or (3) Insured (the person whose death causes the ins. company to pay the policy proceeds to beneficiary). To determine if a life insurance policy or its proceeds are probate property, you must identify each applicable person and ascertain who is deceased. Generally, policy proceeds arent included in probate estate, even if insured owned the policy, because she didnt own the proceedsthose are paid out upon death to beneficiary. Pensions and Other Retirement Assets If the designated beneficiary is not the owners estate and survives the owner, then the beneficiarys rights to the account vest upon the owners death. (Proceeds paid directly to beneficiary) Proceeds pass by virtue of contract between the owner and plan administrator. Annuities Fixed Annuity: where the issuer agrees to pay a set or fixed return to the owner. Variable Annuity: where the issuer invests the monies paid by the owner. Because the annuity fluctuates in value, payments to owner will also fluctuate. If the annuity policy is payable only during the annuitants life, payments terminate when the annuitant dies but any payments due to annuitant will be included in the probate estate (absent a designated beneficiary). Annuitant can choose a beneficiary to receive remaining value upon his death. If beneficiary survives the annuitant, the values are not subject to probate estate. Property Subject to a Power of Appointment: When the property owner decides to give someone else the power to select the beneficiaries (instead of the owner selecting them himself). The person making the decision holds the power of appointment over the property (having an interest in the property is not required). Owner can decide whether he wants the power exercised during his life, at death, or at all times. Even if power holder exercises the power at death, the property is not part of a probate estate (unless the holder exercises it in favor of the estate). Transfers before Death Property that was irrevocably transferred before death is excluded from the decedents probate estate because decedent no longer owns that property. If a donee is a minor, instead of making an outright transfer the donor could: (1) Make a transfer in trust; or (2) Choose to transfer property to the minor pursuant to the FL Uniform Transfers to Minors Act (FUTMA). Under FUTMA, the donor transfers the property to a custodian, who holds it for the minor. Even if the donor serves as the custodian, the property can be excluded from donors probate estate. Chapter 2: Intestate EstatesI. Intestate Succession: When a decedent dies without effectively disposing of his property by will, it is said that he died intestate and thus his property is governed under the laws of intestacy. Occurs when decedent dies either: (1) without a will; (2) having revoked a will; or (3) having executed a will that was later held to be invalid. Partial Intestacy: If a Will effectively disposes of some property and not others, the others probate assets will pass to the decedents heirs under intestacy. (can be avoided by incorporating a residuary clause with alternative takers) Decedents wishes are not adhered to under this succession because its governed by law. Upon decedents death, heirs must show that they are the closest relative to the decedent under the statute that is entitled to receive, and that after diligent search no valid will exists. Ex: Fred is dead. Wife died before Fred. Children looked for a will and couldnt find anything. The children filed a petition to have the court open a probate for the estate because they know Fred has no other kids. Then Charlotte comes along and says she is the oldest child of Fred. Charlotte would have to prove relationship. Someone having a right under intestacy has a right over a percentage of the entire estate not individual assets. A. Statutory Distribution Pattern: As a general rule, an intestate estate passes to those designated under Fla. Statute 732.102 (spouse), .103 (heirsascendants and descendants), .105 (half blood), .106 (afterborn), and .107. (escheat). Surviving Spousei. Status as Surviving Spouse FS 732.102 A surviving spouse is the first takerirrespective of the length of marriage, quality, cohabitation, or separation. Surviving spouse may have rights in addition to intestacy such as to: homestead, family allowance, elective share, etc. Estoppel: Is appropriate when a spouse has completely repudiated the marriage by subsequent conduct that is inconsistent with being married to the intestate.Ex: In re Estate of ButlerHusband and wife separated. Husband told Wife that he bought a divorce. Wife failed to inquire further. 28yrs later, after they had remarried, Husband dies and W1 finds out that divorce was not real. W1 tried to claim his estate as surviving spouse. The court held that after taking advantage of the divorce that Nathaniel told her he had bought, Georgia could not now claim the benefits of a marriage, which she herself has repudiated by her subsequent conduct. She abandoned the marriage relationship and is estopped from asserting rights under the marriage. Where the parties acted in good faith in attempting to comply with the statute for getting married, but it is later found that the marriage is void due to a clerical error (out of the parties control), the court will find the marriage to be valid. (Ex: Haal v. Maal, case where parties failed to file the license with the clerk and court held marriage was invalid due to their failure to comply with statutory requirements) A surviving spouse is not entitled to any part of a decedents intestate estate if the marriage is found to have been procured by fraud, duress, or undue influence. FS 732.805 Exception: If the spouses voluntarily cohabited as husband and wife for a period of time with full knowledge of the facts constituting the fraud, duress, or undue influence or both have subsequently ratified the marriage. If someone contests and asserts that the marriage was procured by fraud, undue influence or duress; he must prove the assertion by a preponderance of the evidence. If subsequent ratification, then spouse has to prove by preponderance of the evidence that marriage was indeed subsequently ratified. (Prevailing party pays all fees. If claimant wins spouse is left with nothing.) Common law marriages: No longer recognized by Florida. However, if the marriage was entered into in Florida when such marriages were recognized as valid then it remains valid. Additionally, if its valid in another jurisdiction then it will be recognized in Florida, unless doing so is against public policy. Same Sex Marriage: Florida does not recognize same sex marriages procured in another state because they are contrary to public policy. ii. Share of Surviving Spouse FS 732.102It is presumed that the surviving spouse will take care of the children in common. (1)If there is no surviving descendant of the decedent, the surviving spouse takes the entire intestate estate. (2)If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the surviving spouse takes the entire intestate estate. (3)If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, the surviving spouse takes one-half of the intestate estate. (4)If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, the surviving spouse takes one-half of the intestate estate.i. Ex. If decedent dies with $120k, 2 children (A&B), surviving spouse has 1 child from prior marriage. Surviving spouse takes and A and B get the remaining per stirpes. Note: Dissolution of Marriage pending does not impact the surviving spouses rights under the law. (Even though divorce is pending, if client dies, the other party still gets rights as a spouse.) Once divorce is finalized, if the decedents Will refers to his spouse, all the provisions in the will are read as if the spouse died before the decedent. Share of other heirs. FS 732.103The part of the intestate estate not passing to the surviving spouse, or absent a surviving spouse, descends as follows: Descendants If a decedent is survived by descendant, they receive whatever portion of the estate is not allocated to the surviving spouse. A descendant is a person in any generational level down the applicable individuals descending line, including children, grandchildren, and more remote descendants. The term Child excludes a stepchild, foster child, grandchild, or more remote descendant. Parents If decedent is not survived by a spouse or descendants then the decedents parents will be next to inherit. If both of decedents parents survive then they each get 1/2 of the estate. If only one survives then they receive the entire estate. Parent does NOT include stepparents or foster parents. Siblings and their Descendants If decedent has no surviving spouse, descendants, or parents, the decedents brothers and sisters divide the estate in 1/2. If a sibling who predeceased the decedent is survived by descendants, those descendants take that siblings share. (i.e. nieces/nephews of decedent) Siblings and their descendants are collateral heirs. (stem from the same parent or grandparents.) Paternal and Maternal Kindred (Grandparents) If decedent has no surviving spouse, descendants, parents, siblings, or siblings descendants then estate is divided equally between the grandparents. Kindred covers the decedents grandparents and their descendants. Including: aunts, uncles, cousins, and descendants of cousins who are related by blood (consanguinity) not marriage (affinity). Grandparents come first. If no grandparents then to uncles, aunts, cousins, etc. (respectively) Hypo: D has $100k in his estate. If D has no siblings then the estate is divided $50k to maternal side (grandma) and $50k to paternal side (grandpa). On mothers side grandma is the only one alive. On fathers side, grandparents are dead but the fathers 2 brothers and sisters are alive. The uncle and aunt would take the $50k per stirpes. Family of the Decedents dead spouse FS 732.103(5) The kindred of the decedents last deceased spouse (i.e. in laws), would inherit as if the deceased spouse had survived the decedent, inherited the estate, and then died intestate.

Notes: Its not enough to just say you are related to decedent. The relationship must be proven by a preponderance of the evidence. There is a rebuttable presumption that anyone who dies is survived by heirs. It is not presumed that those who claim to be related actually are. Thus, those claimants must prove that: (1) they made a diligent search and inquiry (2) there are no wills, heirs, surviving spouse; and (3) that anyone before them that would have taken as an heir is dead. State v. Rudawski (In re Estate of Tim): Rich Russian immigrant dies intestate and various families sharing his name back in Russia claiming inheritance. The State didnt find evidence that these people were heirs after diligent search and inquiry. The court held that while there is a presumption that there is somewhere some one next of kin to every decedent, there is no presumption that any particular persons are his next of kind, or that his next of kind are ascertainable. The states burden is met when, in addition to proof of the actual death, non-marriage, and intestacy of the decedent, it has been shown that after diligent search and inquiry the state has been unable to find that he left ascertainable heirs. Any other rule would render an escheat impossible if the state had to prove that every claimant was not an heir. II. Intestate Distribution SchemeA. Floridas Distribution Scheme Per stirpes systemDivision is made at the first level of descendants regardless of living or dead. i. Under pure per stirpes (Minority RuleFlorida): Florida divides at the first level of descendants regardless if they are alive or dead. The intestate estate is divided into as many equal shares as there are: (1) surviving members in the generation nearest to the decedent; and (2) deceased members in the same generation who left surviving descendants. (So kids would get their dead parents shares of the estate) **Pro-grandkids of decedent**ii. Per stirpes by per capita representation (Majority Rule): Other states say that if the heirs fail to survive them then the division is divided at the next level where there are survivors. (If K and B are dead then their kids take their share. But if K lives and B dies then K takes it all.) Division is made in equal shares at the first level of living descendants. **Anti-grandkids of decedent**iii. Ex: An intestate outlived his children and was survived only by grandchildren; the grandchildren take the share their deceased parent would have received. If the intestate had outlived two children and the elder deceased child had two children and the younger deceased child had one child, the estate would be divided into two equal parts. Each of the elder deceased childs two children would receive one quarter of the estate. The only child of the younger deceased child would receive one half of the estate. Notes:i. A person who is absent from the place of his last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. Unless there is evidence showing that the absent person was exposed to a specific peril of death (natural disaster). At that point there may be sufficient basis for the court to determine that the person died less than 5 years after the date on which his absence commenced.ii. Any unclaimed property in the hands of a PR that cannot be distributed or paid because of the inability to find the owner, because no owner exists or because the owner refuses to accept it shall be deposited with the clerk of courts, to be deposited later in the State School Fund. Upon proper request and proof of entitlement to the funds, any person may request the funds back within 10 years of being deposited. After that, the funds would escheat to the State.iii. In Florida, a testator cannot disinherit an heir unless his will provides for a substitute taker of his estatestating in the will that he does not want his son to inherit from him would not be enough. iv. Before the intestates death, which is the event that vests an heirs interest, the people that will be entitled to distribution of an estate will only have an expectancy. However, once the assets are distributed, they are treated as if the beneficiary owned the property at the time of the decedents death.III. Special CircumstancesA. Adoption (statutory creaturedidnt exist at common law) FS 732.108 General Rule: The adopted person is a descendant of the adopting parent and the kindred of the adopting familyand is not a descendant of his natural parents nor can the natural parents inherit from his, except that:i. Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parents family. FS 732.108(1)(a); (i.e. M has a prior child and marries H. H adopts her prior child. M dies. Child can still inherit from M.) Ex: Kay v. Swartz, where Decedent died with only a brother who had 2 kids (Paul and Zena). Zena predeceased the decedent but was survived by her adopted child Perry. Zenas husbands new wife adopted Perry after Zenas death. The court held that Perry still had the right to inherit from his mother since the Husband remarried after her death and the new wife adopted the child thereafter as well. Ex: Huskea v. Doody, decedent had a kid with a woman. The woman married and her husband adopted the child. The natural father later died. PR to decedents estate filed petition to determine who the beneficiaries are under the law. The court held that the right of a child to inherit from his father does not commence until after the death of the father. Consequently, the law in effect at the time of decedents death is what controls. ii. Adoption of a child by a natural parents spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent; F.S. 732.108(1)(b) (i.e. M and H had a child. M died. H remarried and W2 adopted the child. Ms family member died. Child can inherit from Ms deceased family member if AFTER M died, H married W2 and W2 adopted the child.) iii. Adoption of a child by a close relative (sibling, grandparent, aunt or uncle) has no effect on the relationship between the child and the families of the deceased natural parents. (F.S. 732.108(1)(c) (i.e. Child is adopted by his own family) iv. Except: Where the missing parent gives up all rights to the child. The child will have nothing to do with that parent. Equitable (Virtual) Adoption (Common law creature)i. Equitable (or virtual) adoption for purposes of intestate succession requires the following elements to be proven by clear and convincing evidence:1. An agreement to adopt a child between the natural parents and the alleged adoptive parents;2. Performance by the natural parents in giving up custody of their child;3. Performance by the child by living in the home of the alleged adoptive parents;4. Partial performance by the alleged adoptive parents in taking the child into their home and treating him as their child; and 5. Intestacy of the alleged adoptive parents.ii. Clear and convincing evidence: where every other possible outcome is negatedhaving a firm belief that there is only one conclusion.iii. If the equitably adopted child can prove the elements, he would be entitled to such rights from the estate as a legally adopted child would have because equity considers done what needs to be done. (See Williams v. Estate of Pender p.45)iv. For legal purposes, the finding of someone to be equitably adopted does not equate to legal adoption. v. The Fifth DCA said in dicta that an equitably adopted child could still inherit from his natural parents.vi. There doesnt seem to be a time limit for asserting a right under Equitable Adoption but it should be done during the probate proceeding.B. Children Born Out of Wedlock There is no issue concerning the rights between a child and his mother, and his mothers family, the issues are concerning the rights of inheritance between the child and the purported father, because paternity needs to be proven. Rule: There is a strong presumption that a child born of a mother while married is the husbands child. A child born out of wedlock, who is thereafter adopted, is no longer subject to the rules of illegitimacy but rather adoption. Florida provides several means of establishing paternity for purposes of inheritance:i. When the parents of the non-marital child entered into a marriage ceremony, even if it was void, regardless if the marriage was performed before or after the childs birth. F.S. 732.108(2)(a) The void marriage or annulment would not make the child illegitimate.ii. When paternity is adjudicated in court before or after the death of the father; F.S. 732.108(2)(b) oriii. When the father acknowledges paternity of the child in writing. (F.S. 732.108(2)(c) Ex: Brown v. Johnson, where court held that in order to establish paternity after the death of the alleged father, the evidence must be clear and convincing. A letter referring to kids as grandchildren is insufficient. C. After-born Children FS 732.106 Afterborn children are those children conceived prior to, but born after, a decedents death. (Child must be born alive) A child may be in gestation at the time of a decedents death. (Legally treated as if they had been born prior to decedents death, thus they are eligible to inherit.) D. Half-blood Heirs FS 732.105 Half blood relatives are heirs related to the decedent through one common parent or grandparentoccurring only with collateral heirs, not with descendants or ancestors. (e.g. half blood brother/sister or half blood uncle/aunt) Each half blood heir shall inherit only 1/2 as much as a whole blood heir. If only half blood family members survive, shares are equal. i. To get the amount, double the amount of whole bloods that there are and add the amount of half bloods there are. Then divide it by the monetary amount to be taken. The total will be what each half blood will get. (i.e. 2 whole + 3 half = 7 divided by $X = the total will be what each half blood will get). UPC treats half blood and whole blood relatives equally for purposes of inheritance rights. E. Children Born of Assisted Reproductive Methods FS 742.17 When a child was conceived from the eggs or sperm of a person who died before the transfer of their eggs, sperm, or pre-embryos to a womans body. The child shall not be eligible for a claim against the decedents estate unless the child is provided for by the decedents will. The couple and the treating physician shall enter into a written agreement providing for the disposition of the couples eggs, sperm, and preembryos in the event of a divorce, death, or any other unforeseen circumstance. Chapter 3a: Appointment of Personal Representative and Formalities of ExecutionI. Appointment of Personal Representative A PR is necessary for both testate and intestate estates and is in charge of administering the probate estate (and nothing else). The intent of the testator as expressed in the will controls the legal effect of the dispositions. The rules of construction will apply unless a contrary intention is indicated by the will. A will is construed to pass all property that testator owned before and after execution of the will. FS 732.6005 When there is a dispute as to who is to be appointed PR, the court may appoint a curator to administer the estate until the dispute is resolved. A. Qualifications of Personal Representative Individuals, trust companies, and certain other entities designated in the statute may be qualified to serve as PR. i. Trust companies and other entities, including banks, must be authorized and qualified to exercise fiduciary companies. Fla. Statute 733.305(1) The following cannot be PR under Florida statute: i. Convicted of a felony There are times when a convicted felon may serve. (i.e. when crime is something that wont effect the administration of an estate, or when the charge is brought during the proceeding)ii. Mentally incapacitatediii. Under age 18iv. Non-Florida residents (unless close family relationship to decedent) ***If however, the proceeding is coming to an end and the parties dont have an issue with the reason for disqualification, they may agree to let the PR continue.*** Qualifying relationships are the decedents: i. legally adopted child/parentii. a relationship by lineal consanguinity to the decedent (e.g. his parent, child, or grandchild);iii. the decedents spouse, siblings, aunt, uncle, niece, nephew or someone related by lineal consanguinity to any such person; or iv. the spouse of any of the foregoing persons. *** Appointed PRs shall notify the parties and the court if at any point they become unqualified to serve as PR.*** The appointed personal representative need not be a beneficiary of the estate. Until a court appoints a curator, or personal representative no one is allowed to touch the decedents things. They cant stay in the home, empty their pockets, take anything from them, or anything; doing so is a tort. (executor de son tort)i. Exception: If property is being violated by another. PR has the right to intrude and call proper authorities. PR then has to place the advertisement telling all interested parties of their rights to file a claim. A good faith effort must be made to notify interested parties. In Florida, PRs MUST have legal counsel at all times. A PR has the right to hire ANY attorney they please regardless of what the Will says. Everybody is free from taking the PR job, but once the person is appointed, he cannot waive the task without the judges authorization. B. Priority in Appointment as Personal Representative (Letters of administration) If decedent died testate: i. Testator may nominate one or more qualified PRs and his wishes will be respected. A nominee may decline to serve as a PR. ii. If no qualified person nominated in the will is able to serve, the beneficiary, or group of beneficiaries, who will receive the majority (in interest) of the probate estate (may be one or more than one person) may agree on a person to be appointed personal representative. Hypo: If decedent leaves estate in equal shares to her 5 children. Then 3 of them need to get together and vote. Hypo: If decedent leaves estate 50% to wife and the rest to 2 kids. One of the kids needs to get with mom to vote. iii. If no PR is appointed based on a nomination in testators will or selection by those in majority interest, the court may appoint any qualified beneficiary named in the will who is willing to serve. If more than one beneficiary seeks to be appointed, the court is to select the ONE who is best qualified. If decedent died intestate: i. The interstates surviving spouse has priority to serve as a PR. ii. If there is no surviving spouse or the spouse declines, a person selected by a majority in interest of the heirs will be appointed. iii. Absent and agreement, the heir who is nearest in degree to the intestate has the next priority. iv. If several heirs who are of the same degree of relationship to the intestate seek appointment, the court will select the best qualified. If an individual designated as PR or with the right to select one is incompetent, a court appointed guardian of that persons property may nominate a new PR. In either a testate or an intestate estate, if no volunteers or previous guardians, then court shall appoint a capable person; but no person may be appointed if:i. They work for or holds public office under the court; or ii. They are employed by or hold office under any judge exercising probate jurisdiction. If anyone thereafter is found to qualify as PR and want to or subsequent will is admitted to probate, then the prior letter of administration may be revoked and new one heard and issued. C. Removal of Personal Representative A PR may be removed (in addition to any penaltiesif applicable) for any of the following causes: Fla. Statute 733.504(1) Adjudication that the PR is incapacitated.(2) Physical or mental incapacity rendering the PR incapable to discharge his or her duties.(3) Failure to comply with any order of the court, unless the order has been superseded on appeal.(4) Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.(5) Wasting or maladministration of the estate.(6) Failure to give bond or security for any purpose.(7) Conviction of a felony.(8) Insolvency of, or the appointment of a receiver or liquidator for, any corporate PR.(9) Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions.(10) Revocation of the probate of the decedents will that authorized or designated the appointment of the PR.(11) Removal of domicile from Florida, if domicile was a requirement of initial appointment.(12) The PR would not now be entitled to appointment.D. Bonds: Fiduciary bondpersons who want to be PR are required to get a bond with surety (insurance to the assets), in case PR runs away with the money. FS 733.402 Some wills contain a provision waiving the requirement of PR bonds. (Although the judge can strike it if he feels a bond is necessary) Judges typically look at the value or nature of the assets in determining the amount of the bond required. Another solution can be asking the judge to require a depository account (creature of Florida statute) and opening of a deposit box at a determined bank. Judge enters an order requiring the account to be opened. Anything can go into the account but nothing can come out without a court order. FS 69.031 Testator could also require that PR keep precious art or other memorable things in the vault of a specific bank. E. Special Rules Deference is given to an appointment by a testator. As long as they qualify under the statute the court has no discretion to remove them. (See, Werner v. Estate of McCloskey) Executor de son tort: Any person taking, converting, or intermeddling with the property of a decedent shall be liable to the PR/curator, for the value of all the property so taken or converted and for all damages to the estate caused by the wrongful action. FS 733.309 A persons actions can constitute a waiver of their right to serve. (i.e. inaction, estoppel of previous spouse) i. Ex: Will says Amy is nominated PR. Amy however, is doing nothing with the Will after decedents death. Maria sees that (and doesnt like Amy) and takes the will, petitions for it to be admitted to probate and requests that Bob (the alternate nominee) to be appointed PR AND serves Amy with the notice. Amy doesnt do anything. That can be constituted as a waiver. ii. Ex: A couple was married. They separated but never divorced. They re-married others. Husband died and 1st wife wants to serve as PR stating she is his wife. She is estopped from doing so and when she re-married she waived the rights to serve. Because they repudiated their marriage. iii. Ex: A couple was married and husband was incarcerated for a long time. While in prison, the wife re-married (without divorcing). When husband died she wanted to be PR to his estate as surviving spouse. Court said she repudiated the marriage and thus is estopped from asserting such a right. Chapter 3b: Formalities of Will ExecutionI. Execution of WillsA. 4 Statutory Requirements (Same formalities for codicils) Will must be in writing (handwritten, typed or printed)Florida doesnt recognize oral wills (nuncupative wills) or non-attested wills (holographic wills)i. NuncupativeAllowed in a Minority of jurisdictionsrequires witnesses to the oral declaration and allowed only under exigent circumstances such as last illness or member of armed forces serving in conflict. ii. HolographicAllowed in a Majority of jurisdictionssome require them to be entirely in the testators handwriting and signed by the testator, otherwise could be invalidated. Others, such as the UPC, are less restrictive; allowing an unattested written will as long as the signature and material portions of the document are in the testators handwriting. Testator must sign at the end of the will. Alternatively, the testator can direct a proxy to sign on his behalf but he/she must sign before the testator (proxy doesnt need to include his/her name but it is advisable to).i. Voluntarily and freely. ii. Natural end is after the dispositive provisions or administrative provisions rather than the physical end of the document. iii. Signature need not be the full name or anything special. Can be a mark. So long as they intended that to be their signature and that it serves to execute their wishes under the will.iv. Ex: In re Schieles EstateSigning after the attestation clause is not the end of the will according to statute. v. Ex: Bradley v. BradleySince the notary signed where the testatrix should have, the only place to sign was where the notary was to sign. The fact that the notary apparently again signed under testatrixs signature evidences their intent to authenticate the instrument as a completed expression of her testamentary purposes. Testator must sign in the presence of at least 2 witnesses. i. Testator or proxy can sign in private, but if so, testator must appear before the witnesses and attest that the signature was his. ii. Some states require publishing of the will. Publication of a will means that the testator tells the witnesses that they are indeed witnessing the signing of the will for it to be valid. Florida does not have this requirement. See, In re Estate of Watson Witnesses must sign in the presence of the testator and each other. Witnesses have 2 duties: i. Actually witnessing the signing of the will (or acknowledgement by testator); andii. They must sign the will attesting to that fact. iii. Witnesses, per Florida statute, must sign their full name. iv. Witnesses can sign anywhere on the will. Statute doesnt require any specific place.v. Presence requirement depends on jurisdiction: Line of vision test (Florida recommended)requires each party be capable of seeing the other in the act of signing. The testator does not actually have to see the witnesses sign, but must be able to see if the testator were to look at the witnesses in the act of signing. But if something is blocking his view then the test fails. Conscious presence test requires only that a party mentally perceive that another is signing, without the need to actually be capable of seeing the other person. Under this test, the witness is in the presence of the testator is the testator, through general consciousness of events, comprehends that the witness is in the act of signing. Consciousness of the fact that the attesting signatures are being written is an indispensable requirement. *** For blind persons, courts in line-of-vision jurisdictions will usually hold that if the blind person is conscious of what is going on around him or her, attestation made within his or her range of touch and hearing is valid*** Will means an instrument, including a codicil, executed by a person that disposes of the persons property on or after his death. Including instrument that merely appoint a PR or revokes or revises another will. Any person who is of sound mind and is 18 or more years of age or an emancipated minor may make a will. FS 732.501 A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid (if it is not invalid for other reasons). (Same applies to revocations of a will) (Case law refers to mistake in the execution only.) FS 732.5165 A will executed by a non-resident of Florida that is valid in accordance with the law of the jurisdiction where executed will be valid in Florida. B. Qualifying as a Witness Anyone competent to be a witness, including beneficiaries of a will may serve as a witness.i. Competency is judged by the persons ability to understand and be understood concerning the witnessing of the will. ii. A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness. iii. Disqualification of witnessA person is disqualified from testifying as a witness when the court determines that the person is: FS 90.603 Incapable of expressing himself or herself concerning the matter. Incapable of understanding the duty of a witness to tell the truth.iv. Although a beneficiary may serve as a witness, using interested party carries several risks. (e.g. will challenged for undue influence by the beneficiary/witness) A notary can be a witness. A notary signature can automatically substitute for a second witness (i.e. if the notary signed in the presence of the testator and other witness). However, for a self-proof affidavit they cannot. See, Simpson v. WilliamsonII. Testimonium and Attestation Clause Although not required, the testator may add a testimonium and an attestation clause to the will. An attestation clause states the basic facts that occurred during execution of the will. It may also include the number of pages to the will. (Example on pg. 61)III. Self-Proof Affidavit and Admitting Will to Probate The self-proof affidavit is sworn testimony that the execution of the will complied with Florida law and that the will is the testators. The statutes provide that this affidavit may be signed at the time of the execution of the will or at a later date. Although not required, it is strongly recommended. (valid if self-proved in another state) When a will is admitted to probate for validation, the court requires sworn testimony of the witnesses as to the wills execution. The self-proof affidavit is a tool that makes admitting the will to probate more efficient. Executing is at the same time as the will is thus highly advisable. If the validity of the will is contested, the proponent has the burden of establishing prima facie that the will was properly executed and attested. However, validly executed self-proof affidavit establishes prima facie the formal execution and attestation of the will. IV. Gifts to Lawyers FS 732.806 Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift. V. Integration A will is a single, integrated expression of the clients dispositive plans. Conditions precedent are okay in a will, but subsequent are very difficult to enforce after death (unless left in a trust). Notes: A validly executed military testamentary instrument will be admitted as a valid will in Florida. So long as the testator signs it, in the presence of a military legal assistance counsel, and attested by 2 witnesses. Holographic and nuncupative wills are not recognized in Florida.Chapter 4: Testamentary Capacity and Undue InfluenceI. Requirements for Testamentary CapacityA. Age or Emancipation: To execute a valid will, the testator must be at least 18 years old or an emancipated minor. This requirement must be satisfied at the time of signing the will. Emancipation can occur through marriage or court order. An emancipated minor, as a result of marriage, does not lose his status after getting divorced, or once his spouse has died. B. Sound Mind: The standard to determine if testator had the requisite testamentary capacity is determined by case law.[footnoteRef:2] [2: Florida refers to the testators mental state as capacity and not incompetence. ]

The general rule is that all testators are presumed to have testamentary capacity. The presumption of lack of testamentary capacity, created by incompetency adjudication, is only overcome by proof that the will executed after such adjudication was signed during a lucid interval. The proponent of the will executed during the continuance of the adjudication has the burden of proving that it was executed during a lucid interval. The presumption of sanity switches when the decedent had been declared incapacitated. In such case, there would be a presumption of incompetency and the burden of proving testamentary capacity is placed on the proponents, rather than in the challengers of the will. Courts will look at 3 things to determine testamentary capacity. Whether the testator understands:i. 1. The nature and extent of the property to be disposed of; (what he/she owned, value of it)ii. 2. The testators relation to those who would naturally claim a substantial benefit from the will;iii. 3. That the document signed would give away his estate upon her death; andiv. 4. The practical effect of the will as executed, that those not included in the will, will not share on his estate. (Knows how and who will be effected under the willimportant when disinheriting someone) A testators capacity is determined at the time of signing. i. Even if the capacity of the testator is questionable, if it was executed during a lucid interval, it would be valid. Lucid interval is a period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity. (Very difficult to prove but is possible.) Ex: Skelton v. Davis, where a will lessening the number of devisees on her prior will was allowed into probate because the testator explained she wanted to disinherit some of her children for having mistreated her. The court observed that she knew the nature of the instrument, the identity of her heirs, and the effects of her will.***EXAM NOTE: Create a time line when sound mind is in question*** On the other hand, a will may be stricken if is the product of an insane delusion of someone with capacity.i. Insane delusion is a spontaneous conception and acceptance as a fact, of that which has no real existence except in imagination. The aberration must be such as indicates a diseased or deranged condition of the mind.ii. Ex: See, Edwards v. Citizens National Bank of Leesburg holding that any belief that arises from reasoning based upon a known premise, however, imperfect the process may be or however illogical the conclusion reached, is not an insane delusion. An insane delusion requires such belief to arise from a premise that has no real existence except in imagination. Notes: i. Alcoholics, drug addicts, prescribed narcotic users do not lack testamentary capacity per se. ii. Circumstances that would be looked at are the age of the testator, its appearance, health, what happened before or after, if the person drove to the law office to sign his will, if they exhibited an odd behavior.iii. Gifts cannot be left to incompetent people. But can be left to a trustee to hold for the benefit of the beneficiary to be used as testator indicates. iv. Clients may be extrinsically peculiar and wacky but still doesnt determine their testamentary capacity. v. Interested parties is defined as any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. The term may vary and includes PRs and trustees but not beneficiaries that have received full disbursement of benefits. FS 731.201vi. If there is lack of testamentary capacity, the will is totally invalid. No part of it would be valid.vii. An unnatural disposition does not in and of itself signify a lack of testamentary capacity. (ex. Just cause collateral relatives were preferred to the grandchildren may be unusual but testator has all the right to dispose of his property as such.) viii. In terrorem or no contest clause: is a provision in the will that punishes the beneficiary who undertakes to contest the will. It is not enforced in Florida.

II. Undue Influence Elements to proving Undue Influence: i. There was influence exerted on the testator, ii. The effect of the influence was to overpower the testators free agency; and iii. The product of the influence was a will that would not have been executed but for the influence. Raising a presumptions of undue influence(need all three) Contestant must establish that the beneficiary:(1) Was a substantial beneficiary Getting the lions share of the will. Some of the factors that weigh in favor of finding one are: that he is the only beneficiary, that he obtained substantially more than what would have received in intestacy, that he got significantly more than others in the same degree of relationship, that he got significantly more than what he got in previous wills, etc. Third Party Beneficiary: A person can either be the direct or 3rd party beneficiary to raise a presumption and meet this element. (2) Occupied a confidential relationship with the testator; and Decedents family members are not the only individuals whose relationship to the decedent might be considered confidential. Others may have such a relationship including decedents physician, attorney, religious advisor, or even household employee. A spouse is immune from the presumption of undue influence, EXCEPT if the marriage was procured by fraud, undue influence, or other such means. UNLESS specified acts of ratification occurred after the marriage. If challenge is based on spouse being guilty of undue influence, person contesting will based on undue influence must present direct evidence not just a presumption. (3) Was actively involved in procuring the will. 7 factors to consider when active procurement of a the will: (1) presence of the beneficiary at the execution of the will; (2) presence of beneficiary on those occasions when the testator expressed a desire to make a will; (3) recommendation by the beneficiary of an attorney to draw the will; (4) knowledge of the contents of the will by beneficiary prior to execution; (5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will. (6) Securing of witnesses to the will by beneficiary; and (7) Safekeeping of the will by beneficiary.

***If the will is the product of undue influence, it can be voided in whole or in part. So, when challenging a will based on undue influence you have to specify if the whole will was the product of UI, or only some of it** Standard of Proof: Proponent of the will must overcome raised presumption of undue influence by a preponderance of the evidence. (See Hack v. Janes) Once the presumption of undue influence is established, the only burden that shifts to the beneficiary is to give a reasonable explanation for his or her active role in the decedent's affairs, and specifically, in the preparation of the will. (the current rule is that once the presumption arises, the proponent of the will has to prove there was no undue influence). Once the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding. See RBC Ministries v. Tompkins Its possible for someone to engage in active procurement of undue influence for the benefit of another. A parties good faith actions towards the testator do not in and of itself equate to active procurement. (Ex: Carter v. Carter, where son drove mother to redo her will, among other errands. Court held those were acts of a dutiful son and not an undue influencer.) Notes: i. An action to contest the validity of a will may not be commenced before the death of the testator. FS 732.518

III. Attorney-Client Relationship Because an attorney can abuse a clients confidence or influence a client when drafting a will, which would constitute a conflict of interests, the law has created a presumption of undue influence by an attorney who drafted a will whenever the client makes his attorney a substantial beneficiary of his will, either by devising a substantial amount of the estate, or by naming him as the estates executor or trustee (n/a to lawyer being fiduciary; Non-waiveable). FS 732.806 Exception: When the lawyer or other recipient of the will is related to the client. These relatives are: spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship. Relatives include in-laws and cohabitants. Gifts include inter vivos gifts. If a part of a written instrument is invalid by reason of this section, the invalid part is severable and may not affect any other part of the written instrument that can be given effect.Chapter 5: Fraud, Duress, Mistake, Spoliation, and Tortious InterferenceI. Fraud, Duress, and MistakeA. Fraud: Exists where someone makes a deliberate misrepresentation about a material fact, expecting or trying to get the testator to act, or not act, in reliance on that fact and the testator does so. There are two types of Fraud: i. Fraud in the execution: Exists where the testator is intentionally misled as to the contents of the will or pages were switched before the will was executedThe testator is tricked into signing a will believing it was some other document or signing a will where the testator believes it says one thing but it really says something else.) A court may impose a constructive trust where fraud in the execution has been found and voiding of the entire will would defeat the purpose of the testator and have property pass under intestacy. Thus, the court will order that wrongdoer hold the assets wrongfully attained for the benefit of the intended beneficiary. ii. Fraud in the inducement: Exists where the testator was intentionally misled into forming a testamentary intent that he would otherwise not have formed. Standard of Proof: The person contesting the will based on fraud has the burden of proving it by a preponderance of the evidence. B. Duress FS 732.5165 provides the same rules for duress as fraud. Any will executed under duress is void. Requirement: Duress, sufficient to invalidate a will or devise, requires a showing that some threat of physical harm or coercion was made against the testator.C. Mistake There are 2 types of Mistakes (only 2 of which can render a will invalid): i. Mistake in the inducement: Where the testator is induced/influenced to do something under mistaken belief of fact. (i.e. to disinherit someone that you think is dead.) Ex: Dad gives daughter a diamond ring to hold while he is in the hospital. After he is out she gives it back. Dad has a mistaken belief that she switched the rock on the ring and has his will disinherit her. ii. Mistake in the execution: Where the testator executes a will under the mistaken belief that he is executing another document. E.g. Mistaken as to the document because T thinks hes signing a deed when he is really signing a will or T picks up wifes will thinking it was his and signed it. Ex: D signed 5-page document, the first 2 are his but the last 3 are of someone else (the copier mixed the wills up). Nonetheless, the will is validly executed. The court may void the last 3 pages. Ex: The decedent didnt know what he was signing and thought he was giving blackacre to Sue and instead was to Bob.***Scriveners ErrorDOES NOT invalidate a will*** Ex: Attorney made the mistake of taking out all dispositive provisions instead of removing just one provision about one beneficiary. It was a scriveners error and the attorney appeared and admitted to the error. Court here still denied the mistake.

Fla. Statute 736.0415. Reformation to correct mistakescourts are legislatively authorized to reform trusts, including testamentary trusts, to correct mistakes even absent an ambiguity, if there was clear and convincing evidence of the testators intent. A court may reform a will to correct mistakes of fact or law, even without an ambiguity, as long as there is clear and convincing evidence of the testators intent. FS 732.615 (**Trust Statute**) Beyond reformation, wills that are procured by mistake are void, or a provision of a will is voided.D. Effect of Voiding Will Provisions The courts action does not reinstate a devise that allegedly would have been included but for the wrongdoing. Probate can strike something from a will as a result of fraud but cannot add any provisions to the will that are not there nor can the probate court bring into being a will which the testator was prevented from making and executing by fraud. Relief should be granted either in the form of: i. A constructive trustpermitting the fraudulent gift to stand and holding defrauder as a constructive trustee for the victim of the fraud; or ii. By giving the aggrieved party an action at law for damages against the defrauder. II. SpoliationA. Spoliation is a post-execution change in the will or codicil by an unauthorized third person, requiring establishing that an unauthorized change occurred. (Alteration Same as spoliation but done by the testator. It is not permitted and will be held invalid.)B. If the original will terms can be established, the will, as originally written, may be admitted to probate. (photo copy may be provided as proof) C. In a case of alteration or spoliation, the court must, to the extent possible through the reception of relevant and competent evidence, determine and enforce the contents of the true, unaltered will. An alteration or spoliation specifically does not affect the validity of the will as originally executed. (See, Lowry v. Roberts) Malicious prosecution of a will contest: A tort action for a claim to contest a will without evidence (frivolous law suit).III. Tortious Interference: Requirements: Can be established where a person, by his intentional ill motivated actions, causes the decedent to decrease or eliminate a gift that the decedent has a fixed and definite intention to make to this beneficiary or person being harmed by wrongdoers interference. (Test: But-for the interference they would have received gift) To prevail in a tortious interference with inheritance claim, a plaintiff must establish that:(1) The existence of an expectancy (The plaintiff would have received a portion or greater portion, under the will)(2) Defendant internationally motivated actions causing decedent to decrease or eliminate a gift to plaintiff; (3) Defendants actions were the direct and proximate cause of plaintiffs injury (But for test)(4) Damages General Rule: You are required to exhaust your remedies in probate before bringing a tortious interference case. Exception: See, Neumann v. Wordock, where court held that the general rule applies unless a probate proceeding will not provide an adequate remedy and tort action would be proper. If the defendant's fraud is not discovered until after probate, the plaintiff is allowed to bring a later action for damages since relief in probate was impossible, and fraud in the prevention of the will contest, is one that would preclude relief in the probate court. (See, Shilling v. Herrera, case of brother that hired caretaker for his sister and caretaker ended up convincing sister to make her sole beneficiary. Hid from the brother the fact that she died until after probate was complete.) FS 732.5165 voids any part of the will attributable to the prohibited behavior. As a result, devises may go to residuary takers or property may pass by intestate or under prior wills. A. Notes: FS 732.517. Penalty Clauses for contestprovisions penalizing an interested person for contesting a will are unenforceable in Florida. (but are valid in other states) FS 732.616. Modification to achieve testators tax objectivesUpon application of any interested person, to achieve the testators tax objectives the court may modify the terms of a will in a manner that is not contrary to the testators probable intent. The court may provide that the modification has retroactive effect. FS 732.901. Production of willsCustodian of a will has to deposit it with the clerk within 10 days of finding out that testator is dead. The Original must be filed and Clerk will retain and preserve for 20yrs. Failure to file will subject the custodian to damages (i.e. attorneys fees, costs, etc.)Chapter 6: Amendment and Revocation; and Disposition by Other Means I. Terminology Codicil is a testamentary instrument ancillary to a will that adds to, varies, or revokes provisions in the will, executed with the same formalities as a will. II. Revoking or Amending a Will or Codicil A testator can revoke or amend a will or codicil (in part or whole) by (1) subsequent writing; (2) by physical act; or dissolution of testators marriage after execution of a will. It is possible for someone to execute a will with no provision to revoke a previous one. In that case, the prior wills are not revoked but amended as to the inconsistent provisions. The testator must have testamentary capacity at the time of the revocation or amendment. The revocation of a will, or part thereof, may be challenged on the grounds that the revocation was procured by fraud, duress, mistake, or undue influence. Claimant has the burden of proof (Shifts from proponent of the will to claimant) Where decedent drafted several wills prior to the latest one that serves as proof that the testator did not want to die intestate. Revocation of a codicil that amended a will, revives the will provision previously amended. Revocation of a will whether by writing or physical destruction automatically revokes all amendment/codicils to that will. FS 732.509A. Express Revocation by Subsequent Writing FS 732.505. Revocation by Writing A will or codicil, or any part of either, is revoked:(1)By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency.(2)By a subsequent will, codicil, or other writing (i.e. Trust) executed with the same formalities required for the execution of wills declaring the revocation. Hypo: Testator xed over a provision of her testator. Is the will provision revoked? No. It would be amending but it would be invalid because it requires the same formalities as execution of a will. B. Revocation by Inconsistent Subsequent Writing The testators new Will might not mention any earlier will. If both wills are valid but have inconsistent terms, the later will revokes the prior inconsistent terms. It does not revoke the entire will. (the later will resembles a codicil in its effect.) C. Revocation by Act FS 732.506. Revocation by ActA will or codicil is revoked by the testator, or some other person in the testators presence and at the testators direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. i. The entire document would have to be revoked in this mannernot part of it. If the will was last known to be in the testators possession (no one elses possession), a rebuttable presumption arises that the testator intentionally revoked it. (i.e. writing cancelled all over a will would count as obliterating or defacing it) Testator cannot rip up a copymust be the original. ii. Moneyham v. Hamilton, where testator asked his daughter to get him his will so he can revoke it. She pretended not to find it and when he died admitted it to probate. The court held that the frustration of a mere intent to revoke a will is not sufficient to constitute a valid revocation. The will was admitted because it would be too much room for fraud to take someone on their word about a testator wanting to do something that they never got to do before dying. iii. In re Estate of Kuhn, testator ripped her will down the middle and kept it in her safe. The court held that when a testators will is found torn after death, a presumption arises that the testator tore or mutilated the testamentary writing with the intent to revoke the same. The presumption of revocation is overcome by competent testimony.iv. Partial revocation by alteration must comply with the formalities of executing a will (i.e. signed by testator at its natural end, witnessed, etc.) [See, Jones v. Shifflet, testator crossed out provisions of the will and put names of other people in its place, signed next to the provisions along with witnesses. Court held partial revocation was not executed with same formalities as a will.] Marking up an existing will with notes or other marks will not revoke or create a new will unless you sign the modified document at the natural end of the document and have witnesses do the same. (See, Dahly) A mere change in the testators family status, such as getting married or divorced, does not revoke a will. It may however, affect particular devises. Changes made to a will before execution are valid and do not require compliance with formalities, however, they may present problems when trying to determine if changes were made before or after, especially when handwritten.III. Revival or Republication of Revoked Will or Codicil FS 732.508. Revival by revocation **FL is an Anti-Revival State**(1) The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will. (Same applies to codicils.) (2) The revocation of a codicil to a will does not revoke the will, and, in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to reinstate the provisions of a will or codicil that were changed or revoked by the revoked codicil, as if the revoked codicil had never been executed. FS 732.5105. Republication of wills by codicilThe execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. Testator can create a codicil reviving a will that was previously revoked. If the codicil is destroyed the will remains valid. FS 732.511. Republication of wills by re-execution.If a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by its re-execution or the execution of a codicil republishing it with the formalities required by this law for the execution of wills. IV. Testamentary Disposition Involving Other DocumentsA. Incorporation by Reference and Acts of Independent Significance (When a will references another document) FS 732.512(1) lets a testator refer to pre-existing writing and incorporate it by reference into his will. i. The intention to have it incorporated must be clear, just mentioning it will not suffice. ii. The referenced document must be in existence prior to the execution of the will; and iii. The document must be clearly described in the will to allow its identification. FS 732.512(2) lets the testator dispose of property in a will, based on acts and events, rather than on a specific devise in the testators will. (The other documents need not be signed with formalities of a will.) i. The acts and events must have independent significance, ii. The acts or events may occur before or after the execution of the will or the testators death. iii. The execution or revocation of a will or trust by another person can constitute such an event. Ex: Mother devises her estate as follows: To Son, but if he predeceases me, to the residuary devisees of his Will. Sons will devises the residue of his estate to his friend, Fred. Sons execution of his will is an act of independent significance, regardless if he executes it before or after her mother executed hers. Ex: Testator was in business with brother bob, a barbershop owned as corporation, 50/50 stock ownership. They realized that if they die their spouses would become owners of their share and they didnt like that. So to avoid being partners with their in law, they draft an independent document stating that if one of them dies the other one is to sell their share to the surviving partner.B. Devise to an Existing Trust FS 732.513. Devises to trustee(1)A valid devise may be made to the trustee of a trust that is evidenced by a written instrument in existence at the time of making the will, or the two documents must be executed concurrently, if the written instrument is identified in the will.(2)The devise shall not be invalid even if any or all of the following reasons:(a)the trust is amendable or revocable, or both, by any person.(b)the trust has been amended or revoked in part after execution of the will or a codicil to it.(c)the only res of the trust is the possible expectancy of receiving, as a named beneficiary, a devise under a will or death benefits, and even though the testator or other person has reserved any or all rights of ownership in the death benefit policy, contract, or plan, including the right to change the beneficiary. (3)The devise shall dispose of property under the terms of the instrument that created the trust as previously or subsequently amended.(4)An entire revocation of the trust by an instrument in writing before the testators death shall invalidate the devise or bequest.(5)Unless the will provides otherwise, the property devised shall not be held under a testamentary trust of the testator but shall become a part of the principal of the trust to which it is devised. Ex: Today I establish a trust. But in my will I do all estate planning. A provision states that on my death I give $100k to the trustee of my trust. Thus, the trust is okay and sufficiently valid to receive the gift and just becomes complete when it actually gets it. Someone that apposes it would argue that it didnt have a res, but this statute was enacted to stop those arguments.C. Separate Written List of Tangible Personal Property FS 732.515 allows the testator to make a list of non-business tangible personal property and the intended recipients.i. Testator can change the list and make multiple lists. ii. If multiple, then they are all effective so long as they dont conflict. iii. If conflict, then the last list governs. iv. These lists can be written before or after the will is executed and do not require any witnesses. v. Does not apply to property that is specifically devised in the will, but to be safe, the will drafter could indicate on the will that the devise in the will is to operate only if no separate list is found. (i.e. cash, stocks, etc. not applicable) Requirements to the list: i. Testator must sign each list;ii. The property and recipients must be described with reasonable certainty. (Clearly identify who the property is going to and each object) iii. The testators Will must refer to the possible existence of such a list. Chapter 7: Dependent Relative Revocation; Lost or Destroyed Wills; and Later Discovery of a WillI. Dependent Relative Revocation (DRR) DRR is a doctrine invoked to prevent intestacy in situations involving a revoked will (by physical act), requiring a finding that the decedent preferred a revoked will to intestacy and that the attempted revocation was conditional. Requirements to DRR: To convince a judge there are 2 things you need to prove: (1) establish that testators revocation of earlier document was done based on his belief that the later document would be valid and supersede the later document; (2) be able to prove to the court that the testator didnt wish to die intestate and would rather have the earlier will established than die intestate. (Looks to various documents, how many were there, what they said, what they didnt say**documents need to be consistent**)when these 2 things are proved a rebuttable presumption arises that testators earlier will is revived. Where a testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, testator preferring the old will to intestacy. In order to revoke a valid will there must be a joint operation of act an intention to revoke and the intention must be conditional. The legal presumption is that the testator destroyed a will with the purpose of revoking it. To rebut this presumption, it is necessary to consider (1) the circumstances under which and the purposes and reasons for which it was destroyed; (2) where from all the circumstances it appears that the revocation was connected with the execution of another will; and (3) that the testator meant the revocation of the one to depend upon the validity of the other. Then if the latter will is inoperative, the revocation fails also, and the original will remain in force. The fact that the later will had a provision revoking any prior wills does not prevent the application of DRR because it is inferred that the testator intended to revoke former wills or the purpose of giving effect to the new will. (See, Stewart v. Johnson) Dependent Relative Revocation creates a rebuttable presumption that the testator would have preferred his prior will to intestacy; this requires finding not only that the testator preferred to die testate, but also that the provisions of the invalid will are not materially different from the prior will(s). DRR generally does not apply to an invalid portion of a will but rather to an entire will. Exception: Notably in charitable devise cases. Ex: D made a charitable devise in W2 that was invalid bc it violated the Rule against perpetuities. W1 devised to the same charity but that provision was valid. W1 also indicated her intent to not die intestate. The court made a partial revocation of W2 and replaced it with the provision in W1 in order that D not die intestate. The court made a partial revocation of W2 and replaced it with the provision in W1 in order to avoid failure of that provision. Theories for DRR: (1) Courts prefer testacy to intestacy; and (2) testators intent is of paramount importance. Ex 1: D executed W1 and W2. W2 revoked W1 by writing. W2 was found invalid for lack of attestation. Its revocation of W1 was invalid so W1 is still valid. DRR wont apply. Ex 2: D executed W1 and W2. W2 revoked W1 by writing. W2 was invalid bc D lacked capacity. W1 is still valid because it was not effectively revoked. DRR wont apply. Ex 3: D executed W1 and W2. D tore up W1. W2 was found to be invalid bc it lacked attestation. Tanyas lawyers had a carbon copy of both Wills and the only difference was a charitable beneficiary devise. Its evidenced that D didnt want to die intestate due to the numerous wills, the court would likely apply DRR. D destroyed W1 on the condition that W2 was valid. Meaning, W1 was not to be revoked unless W2 was validbecause it wasnt then W1 may be admitted to probate. Ex 4: D executed W1 and W2. D tore up W1 but W2 was invalid for lack of attestation. This would mean D would die intestate. Ds lawyer has a carbon copy of each will showing that they were noticeably different. The court is unlikely to invoke DRR because it has no evidence that D preferred the provisions of W1 to intestacy. Ex 5: D executed W1 giving his son only a 20% interest in his estate because he is a gambler. The son later rehabilitated from gambling and D executed W2 leaving him a 30% interest. W1 revoked by writing W2. The son then started gambling again and tore up W2 in front of witnesses stating he was reverting back to W1. The court may apply DRR and allow the will into probate on the theory that W2 was revoked on the condition that W1 was revived. In Ex. 5, in Florida, the only option for D not to die intestate is to apply the doctrine, because Florida is an anti-revival jurisdiction. However, jurisdictions that allow revival would admit W1. Another option in Florida would have been W1s re-execution or republication.II. Lost or Destroyed WillsA. When a will was in possession of a testator and cannot be found, a rebuttable presumption arises that the testator destroyed the will with the intent to revoke it. If rebutted, the terms of the will need to be established for probate administration. Presumption does not arise if the testator was not the last known person to have the will. A presumption is instantly rebutted if: (1) persons who would benefit by the wills destruction had access to the will, knew it was adverse to his interest, and the opportunity to take/destroy it, or (2) there are factors that explain why the will is missing (i.e. testators papers were lost in a hurricane). Evidence to rebut the presumption must be competent and substantial. (See, Walton v. Walton)B. The contents of a lost will may be proven by: FS 733.207(1) the testimony of 2 disinterested witnesses who knew the terms of the will; or (2) by presentation of a correct copy of the will and the testimony of 1 disinterested witness. (If testimony is unavailable, then estate will pass through intestacy.) Correct copy is one requiring identical copy such as carbon, photocopy, or scanned copy. (Drafts are NOT correct copies) As long as someone can testify to the document, the court may accept an identical computer generated copy of what the testator signed may be sufficient proof. C. Dead Mans Statute **Abolished in Florida**: A law prohibiting the admission of a decedents statement as evidence in certain circumstances, as when an opposing party or witness seeks to use the statement to support a claim against the decedents estate. III. Later Discovery of a WillA. If a will or codicil is found after administration of the estate has commenced, any interested person may admit that document to probate upon petition. If an estate has been fully administered and closed, this statutory provision will not allow reopening it despite the later discovery. FS 733.208Chapter 9: Types of Devises; Abatement; Ademption; Accessions; Exoneration; and Apportionment of TaxesI. 4 Types of DevisesA. Specific: a devise of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described. It can be of a specific item of property or a specific type of property. Ex: devising my real property located at (specific item); or All the jewelry I would own at the time of my death (specific type). Ex: An example of a specific devise with an alternate general devise is: I leave to X 100 shares of Y stock. In the event said stocks have been sold, then I leave X an amount of cash equal to the value, at the time of my death of such stock. Badcock v. Badcock, where Husband specifically devised personal tangible property (including household items) to his son. Upon his death, the wife sought to render the items exempt. The court held that when property that would otherwise be exempt is specifically or demonstratively devised by will, it shall not be included as exempt property. Although household furniture and automobiles are usually exempt, and thus the surviving spouse would usually have the right to a share on them, in this case they could not be considered so, because they were specifically devised to the decedents son. Since the devise was particularly designated, and could only be satisfied by the particularly described items, it was a specific devise. The general assets of the estate could not satisfy the bequest to the son, so it was not a general devise. B. Demonstrative: a devise of a fixed amount, stock, or other property, payable first from a particular fund or from the proceeds of the sale of a particular item, and second, from general assets to the extent the particular fund or item is insufficient or is not part of the estate. Two essential components of a demonstrative legacy are:(a) That it be an unconditional gift in the nature of a general legacy, and (b) That it indicate the fund out of which the legacy is to be satisfied. Ex: I devise $100,000 to Ed, payable first from my account at X bank, and if the account does not have sufficient funds, from the general assets of my estate; or I devise 100 shares of X corporation common stock to Sue, payable first from my account at X brokerage If the fund is insufficient to cover the full demonstrative devise, for purposes of abatement, the devise is treated as general to the exte