Law School Case Briefs: January 2017

LAWRENCE V. ASHBA, 59 N.E.2d 568 (1945) CASE BRIEF

LAWRENCE V. ASHBA

59 N.E.2d 568 (1945)

NATURE OF THE CASE: This was an action in specific performance and for an accounting, for the setting aside of a real estate conveyance and for a constructive trust.

FACTS: Mrs. Lawrence's first husband died in 1905 and in 1907 she married William T. Lawrence who never had any children. In 1937 the married couple held some property by the entireties which had been largely acquired through the thrift and financial resources of Mrs. Lawrence. On that day in 1937 the parties made mutual wills that gave their estates to each other and then to Mrs. Lawrence's three children. Eventually the properties were disposed of but new properties were acquired. Mrs. Lawrence died in 1942. Those properties were held in entireties. After her death, William emptied their safe deposit box. The will was probated on October 13, 1942. William then married again on September 20, 1942 and eight days later vested title in the real estate to his new wife, Iva. Williams openly stating that this was so Mrs. Lawrence's children would not get anything. There was no evidence of consideration for the conveyances to Iva.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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CUMMINGS V. SHERMAN, 132 P.2d 998 (1943) CASE BRIEF

CUMMINGS V. SHERMAN

132 P.2d 998 (1943)

NATURE OF THE CASE: This was a dispute over the enforcement of mutual wills.

FACTS: Homer and Phoebe executed mutual wills. Homer died later that year and his will was admitted to probate and it gave Phoebe full right of disposition. Phoebe changed her will before her death and that will was probated. The new will made no provisions for Homer's relatives who sought and were awarded half of Phoebe's estate based on the contract to make the mutual wills. Phoebe's relatives appealed.

IN RE KAUFMAN'S ESTATE, 155 P.2d 831 (1945) CASE BRIEF

IN RE KAUFMAN'S ESTATE

155 P.2d 831 (1945)

NATURE OF THE CASE: This was a dispute over wills admitted to probate.

FACTS: A 1940 will was executed in New York. Later that will was expressly revoked and another was executed in California on April 30, 1941. Both wills named identical persons for identical cash bequests and a church as residual legatee. The testator died on May 2, 1941. The 1941 will was admitted to probate but the bequest to the church was declared null and void as statutes prohibited charitable bequests executed within 30 days of death. The church filed this petition to have the 1940 will probated. The trial court refused. This appeal resulted.

KELLY V. DONALDSON, 456 So.2d 30 (Ala. 1984) CASE BRIEF

KELLY V. DONALDSON

456 So.2d 30 (Ala. 1984)

NATURE OF THE CASE: This was a dispute over an alleged revocation.

FACTS: A will was offered for probate and it was contested under an alleged revocation. The proponent of the will was the sole beneficiary of the will and the sole evidence in support of her position was her testimony that the decedent executed the lawyer drawn will in duplicate originals, retained one copy, and gave the other to the proponent. After the decedent's death the retained copy could not be found. The jury gave the verdict to the proponent. The appeal resulted.

THOMPSON V. ROYALL, 163 Va. 492, 175 S.E. 748 (1934), CASE BRIEF

THOMPSON V. ROYALL

163 Va. 492, 175 S.E. 748 (1934)

NATURE OF THE CASE: This is a will contest. Appeal from order allowing probate. Thompson (P), heirs at law, appealed from a judgment, which sustained the trial court verdict probating the will of the testator in favor of Royall (D), beneficiaries.

FACTS: Testatrix executed a will and codicil. Thereafter, she wished to revoke both instruments, and instructed her attorney to destroy them. Her attorney convinced her not to have them destroyed, and to keep them as memoranda in case she decided to have a new will drafted. Notes to this effect were handwritten by testatrix's attorney on separate pieces of paper, signed by testatrix, and physically attached to the will and codicil. After testatrix's death, some of the beneficiaries of the will and codicil (D) attempted to have them probated. A jury found that the instruments were valid, and the court below ordered them to be admitted to probate. Testatrix's heirs (P) appeal.

UNION PLANTERS NATIONAL BANK V. INMAN, 588 S.W.2d 757 (Tenn.App. 1979) CASE BRIEF

UNION PLANTERS NATIONAL BANK V. INMAN

588 S.W.2d 757 (Tenn.App. 1979)

NATURE OF THE CASE: This was a will contest.

FACTS: A 1965 will left property outright. The 1971 will left the property in trust. The 1971 will was contested by two of the testator's children who alleged that the decedent's lawyer falsely led the decedent to believe that one son was heavily in debt and another had large exposures to real estate ventures. The children claimed the lawyer encouraged the decedent to include the trust arrangements to protect his children from creditors. The allegations of fraud and undue influence were not supported but there was conflicting evidence as to the son's financial condition and the trial judge found no genuine issue of material facts and grants the proponent's motion for summary judgment. This appeal resulted.

ESTATE OF KREMLICK, 331 N.W.2d 228 (1983) CASE BRIEF

ESTATE OF KREMLICK

331 N.W.2d 228 (1983)

NATURE OF THE CASE: This was a dispute over the residue of an estate.

FACTS: Testator left his residue to the Michigan Cancer Society. The court of appeals upheld that Society's claim to the devise finding no ambiguity. The American Cancer Society appealed.

KNUPP V. DISTRICT OF COLUMBIA, 578 A.2d 702 (D.C.App. 1990) CASE BRIEF

KNUPP V. DISTRICT OF COLUMBIA

578 A.2d 702 (D.C.App. 1990)

NATURE OF THE CASE: This was a dispute over a mistake in a will.

FACTS: A testator gave instructions to his attorney to draft a will with a residual beneficiary. That attorney screwed up and failed to name the residual beneficiary as he was instructed. The two prior wills drafted by the same attorney for the testator named a personal friend Richard Knupp (P) as the residual beneficiary. The attorney submitted an affidavit admitting that he had mistakenly failed to designate the residual beneficiary as he had been instructed. The trial judge found the will was ambiguous on its face and heard extrinsic evidence. However, the judge came to his senses and excluded that evidence. This appeal resulted.

MATTER OF SNIDE, 418 N.E.2d 656 (1981) CASE BRIEF

MATTER OF SNIDE

418 N.E.2d 656 (1981)

NATURE OF THE CASE: This was a dispute over the admissibility of a will to probate. Appeal by Rose Snide, wife, from an order which reversed a decree admitting decedent's will to probate.

FACTS: Harvey and his wife Rose each intended to execute mutual wills at a common execution ceremony. Each executed by mistake the will intended for the other. Harvey is survived by Rose and three children. Two of the elder children have executed waivers and have consented to admission. The minor child is represented by a guardian ad litem who refused to make such a concession. The argument is that Harvey lacked the required testamentary intent because he never intended to execute the document he actually signed.

SIEGLEY V. SIMPSON, 131 P. 479 (1913) CASE BRIEF

SIEGLEY V. SIMPSON

131 P. 479 (1913)

NATURE OF THE CASE: This was a dispute over the identity of a legatee in a will.

FACTS: Henry's will left $6,000 to his good friend Richard H. Simpson. The legacy was claimed by Richard H. Simpson and Hamilton Ross Simpson. The lower court held for Hamilton Ross and Richard H. has appealed arguing that parol evidence was not admissible to oppose his claim.

BRECKHEIMER V. KRAFT, 273 N.E.2d 468 (1971) CASE BRIEF

BRECKHEIMER V. KRAFT

273 N.E.2d 468 (1971)

NATURE OF THE CASE: This was a dispute over a misnomer in a will.

FACTS: Clara's will was executed nine days before her death. She gave her residuary estate to her nephew Raymond and his wife Mabel Schneikert. At the time the will was executed, Raymond's wife was Evelyn and his former wife was named Mabel Reihs and had remarried. The relatives of Clara claimed the residue on the ground that the residuary bequest was invalid for the misnomer. Raymond and his wife claimed the residue and Mabel also got into the act by claiming half of the residue. The trial court ruled for the current husband and wife combination. This appeal resulted.

CLARK V. GREENHALGE, 411 Mass. 410, 582 N.E.2d 949 (1991) CASE BRIEF

CLARK V. GREENHALGE

411 Mass. 410, 582 N.E.2d 949 (1991)

NATURE OF THE CASE: This was an action to compel delivery of a bequest under a will. Appealed. This was an appeal of an order that affirmed a probate judge's decision awarding a painting to Clark (P) in P's action seeking to compel Greenhalge (D) to deliver the painting to her following the probate of a testatrix's will.

FACTS: Testatrix executed a will in 1977 naming Greenhalge (D) as both her principal beneficiary and the executor of her estate. In 1980, she executed two codicils to the will. Under the will, D was to receive all of testatrix's personal property except for those items which were otherwise disposed of in a memorandum which was mentioned in the will, and which the will recited was known to D. D had helped testatrix draft such a memorandum in 1972. Testatrix also kept a notebook, dated 1979, which listed dispositions of personal property: she made entries in this notebook periodically. In the notebook, testatrix indicated that a painting hanging in her house was to be given to her neighbor, Clark (P). This was not indicated in the memorandum which D helped her draft. After testatrix's death, D received her will, the memorandum, and the notebook, and distributed the property in accordance with the. However, he refused to give the painting to P. At trial, the judge found that the 1979 notebook was a 'memorandum' within the meaning of the will; the notebook was in existence at the time the codicils were executed; and that the codicils ratified the portion of the 1977 will referring to the memorandum.

MAGINN'S ESTATE, 127 A. 79 (1924) CASE BRIEF

MAGINN'S ESTATE

127 A. 79 (1924)

NATURE OF THE CASE: This was an appeal from a rejection of three typewritten pages of seven as a will.

FACTS: A will was petitioned for probate. It consisted of seven loose leaf pages with no relation from one page to the next. Any single page could be substituted into or out of the alleged will with no change in character of the document. There was no relation or recital between the pages and they contained no words of testamentary character. The court ruled that they were not a will. Then the petitioner's appealed the creation of a will from three of the pages.

MAGINN'S ESTATE, 122 A. 264 (1923) CASE BRIEF

MAGINN'S ESTATE

122 A. 264 (1923)

NATURE OF THE CASE: This was a dispute over the validity of will.

IN RE ESTATE OF KAMESAR, 259 N.W.2d 733 (1977) CASE BRIEF

IN RE ESTATE OF KAMESAR

259 N.W.2d 733 (1977)

NATURE OF THE CASE: This was a will contest for undue influence.

FACTS: Kamesar executed a will in 1971 that incorporate a prenuptial agreement with his second wife and gave his grandchild $5,000 and left the rest of his estate to Bernice, one of two daughters stating that his other two children had been provided for in his life. This was contested by Kamesar's son and other daughter for undue influence. The trial court admitted the will to probate. Since 1968, Bernice managed her father's affairs and held a power of attorney. There were records of substantial gifts to the other son and daughter but none to Bernice or her children but in 1973 Bernice and her children each got $3,000 each per year from Kamesar. All except his son testified that Kamesar was of sound mind and body when he married his second wife in 1971. A doctor testified that Kamesar had been in ill health for a number of years and lacked the ability to make decisions when he became hospitalized in 1973. The will was signed with Bernice and his second wife along with the long time attorney of Kamesar present. The attorney questioned Kamesar about the dispositions and that attorney believed that he was competent at the time the will was signed. His wife testified that later, when asked about cutting out his two other children, Kamesar would not remember doing that act.

IN RE CARSON'S ESTATE, 184 Cal. 437 (1920) CASE BRIEF

IN RE CARSON'S ESTATE

184 Cal. 437 (1920)

NATURE OF THE CASE: This was an action to have probate revoked based on fraud.

FACTS: Alpha Carson left a number of bequests to relatives and her residuary estate to her husband. Within the statutory period following probate, her heirs petitioned to have probate revoked based on fraud. The facts indicated that testatrix and her husband had gone through a marriage ceremony a year before her death. Testatrix made her will believing that she was the wife of Gamble Carson. But it is alleged that Gamble was already married to another woman who was still living when he married Alpha. Carson was aware of his incapacity to marry but concealed this from the testatrix. The will was admitted to probate. The lower court ruled a nonsuit and this appeal resulted.

IN RE HONIGMAN, 8 N.Y.2d 244, 168 N.E.2d 676, 203 N.Y.S.2d 859 (1960) CASE BRIEF

IN RE HONIGMAN

8 N.Y.2d 244, 168 N.E.2d 676, 203 N.Y.S.2d 859 (1960)

NATURE OF THE CASE: This was an appeal from the denying of a will to probate.

FACTS: Honigman was happily married to his wife for forty years. After a number of operations and an operation for a prostatectomy and a cancer operation he began to express that his belief that his wife was unfaithful to him. Honigman accused her of all sorts of acts, visited a psychiatrist, and several times mentioned that he was sick in the head. Honigman died but one month before modified his will; he left a small estate to his wife and the remainder to his relatives. His attorney stated that the decision to make a new will just before his death was based on the belief of his wife's infidelity, her large independent estate, and the need of his other relatives. Mrs. Honigman (P) alleged that, he was operating under an insane delusion and lacked the mental capacity to make a will. A jury found that he lacked mental capacity to make a will with respect to P even though he was sane in all other respects.

MATTER OF KUMSTAR , 487 N.E.2d 271 (1985) CASE BRIEF

MATTER OF KUMSTAR

487 N.E.2d 271 (1985)

NATURE OF THE CASE: This was a dispute over the probate of a will. It was an appeal from a finding of incapacity.

FACTS: Probate of will was denied based on the jury finding incompetence and undue influence. Evidence was presented from medical testimony to prove that Kumstar was competent. The only evidence to claim that Kumstar was incompetent was from the face of the will which bequeathed property to a brother who had been deceased for some time and that Kumstar had omitted small bequests as previously promised from the will. The jury found incompetence. The proponent appealed. The Supreme Court ruled that the evidence was sufficient to raise the issue of incompetence and undue influence. The proponent appealed again.

SUCCESSIONS OF EDDY, 664 So.2d 853 (La. App. 1995) CASE BRIEF

SUCCESSIONS OF EDDY

664 So.2d 853 (La. App. 1995)

NATURE OF THE CASE: This was an appeal from a denial to probate a will.

FACTS: Eddy died on January 14, 1994 and a will dated February 23, 1993 was presented for probate by the named executrix. The will was ordered filed and executed. Richard Tison, nephew of the deceased filed a petition to annul the probated will alleging that it did not meet the formal requirements for a statutory will. The will under attack was prepared on an EZ Legal Form which was apparently purchased at a store. The attestation clause and places for all the signatures were on the back of the will. The will was declared invalid because the front side of the single sheet did not bear the signature of the testatrix. The named executrix of the invalidated will appealed.

ESTATE OF REED, 672 P.2d 829 (Wyo. 1983) CASE BRIEF

ESTATE OF REED

672 P.2d 829 (Wyo. 1983)

NATURE OF THE CASE: This was a dispute over a taped recorded statement. It was an appeal in a probate proceeding.

FACTS: A taped recorded statement was requested to be admitted into probate as a will. Reed made a tape recorded statement. The position was that the recorded statement was a writing conforming to the holographic will statute. The argument was that the recording was a writing done by voice print vs. one done by hand print. The trial court refused and this appeal resulted.

MATTER OF THE ESTATE OF COLLINS, 458 N.E.2d 797 (1983) CASE BRIEF

MATTER OF THE ESTATE OF COLLINS

458 N.E.2d 797 (1983)

NATURE OF THE CASE: This was a dispute over proof of the formalities of will execution. It was an appeal from the admission of a will to probate.

FACTS: A will was requested to be admitted to probate. Five witnesses were produced and the actual will was also produced. Those who witnessed the will had no recollection of the circumstances under which it was executed. Based on this faulty memory, respondents moved that the will not be probated. The court denied that motion and ruled that despite faulty memories, due execution could be established based on the attestation clause, the genuineness of the three signatures and the testimony of the physician regarding the mental competency of his then patient. This appeal was taken. The Appellate Division reversed and dismissed holding that at least one of the attesting witnesses must confirm that the testatrix signed the instrument and intended that it was her will.

CUNNINGHAM V. CUNNINGHAM, 83 N.W. 58 (1900) CASE BRIEF

CUNNINGHAM V. CUNNINGHAM

83 N.W. 58 (1900)

NATURE OF THE CASE: This was a will dispute in that it was not properly attested and subscribed.

FACTS: A will was made for the testator to sign. The testator had been confined to his bedroom for some time. It was a small room with no door but only a curtain had been hung. The will was drafted by an attending doctor and another doctor was summoned as a witness. The draft that was made was unsatisfactory and both doctors were sent away. They were again summoned and the will was drawn again with the testator remaining in his bed. When it was drawn, both doctors stepped to the bedside, it was read and the testator pronounced it satisfactory and then signed it. The doctor witnesses then affixed their signatures as well but from a table in the adjoining room that could have been easily seen by the testator by just stepping one or two feet. From where the testator was laying he could not see the table that the doctors used to sign the will. Based on these facts the trial court admitted the will to probate.

ALLEN V. DALK 826 So. 2d 245 (Fla. 2002) CASE BRIEF

ALLEN V. DALK

826 So. 2d 245 (Fla. 2002)

NATURE OF THE CASE: Bonnie Allen (P), and her half-sister, Margarete Dalk (D), filed separate petitions for administration of the decedent's will with the circuit court. The circuit court entered an order that admitted the will to probate and appointed a personal representative. The Fifth District Court of Appeal of Florida reversed the circuit court's decision and certified a question as being one of great public importance.

FACTS: Christel McPeak died. Prior to her death, McPeak had her attorney prepare three documents, including a will, a durable power of attorney, and a living will and designation of health care surrogate. McPeak signed several documents, including four duplicate originals of the living will and designation of health care surrogate and three duplicate originals of the durable power of attorney; however, McPeak failed to sign a copy of her will. After McPeak's death, her niece, P, and her half-sister, D, filed separate petitions for administration with the circuit court. The circuit court entered an order which admitted the will to probate and appointed a personal representative. The court found that the decedent's failure to sign the will did not impose a bar to probate. The circuit court reasoned that the decedent ratified the typed signature contemporaneously with the signatures of the witnesses to the document. Alternatively, the court ruled that as a matter of law, a constructive trust should be imposed in favor of petitioner in the event that the will was not admitted to probate. The Fifth District Court of Appeal reversed the circuit court's decision. The Fifth District acknowledged that the decedent probably intended to sign the will, but found that there was no evidence to support the finding that the decedent intended the typewritten name below the signature line to be the signature. Since the will was improperly executed, a constructive trust could not be imposed because it would have had the effect of validating an invalid will. The Fifth District certified the issue.

HERBACH V. HERBACH, 583 N.W.2d 541 (1998) CASE BRIEF

HERBACH V. HERBACH

583 N.W.2d 541 (1998)

NATURE OF THE CASE: This was a dispute over pretermitted status.

FACTS: Walter wrote his will and left $50,000 to Eileen as a friend. They were married afterwards and were married at the time of Walter's death. Walter's son Barry opposed the status of Eileen getting pretermitted wife status as she was already mentioned on the will. The probate court ruled that she was entitled to that status as she was not mentioned in the will as Walter's wife. Barry appealed.

ESTATE OF GLOMSET, 547 P.2d 951 (Okla. 1976) CASE BRIEF

ESTATE OF GLOMSET

547 P.2d 951 (Okla. 1976)

NATURE OF THE CASE: This was a dispute over being a pretermitted heir.

FACTS: John and his wife, Margie executed joint and reciprocal wills leaving their estates to each other and to their son John Jr. if they both should die in a common disaster. John died first and his forty-year-old daughter, Carolyn sought a declaratory judgment that she was a pretermitted heir. The trial court found that status as there was no evidence on the face of the will to disinherit Carolyn. This appeal resulted.

DONOUGH V. GARLAND, 109 N.E. 1015 (1915) CASE BRIEF

DONOUGH V. GARLAND

109 N.E. 1015 (1915)

NATURE OF THE CASE: This was a dispute over an assignment of rights.

FACTS: Garland died intestate leaving a widow, and five children as his heirs. Three of the heirs died leaving the mother, brother and sisters as heirs. Margaret Donough quitclaimed the inheritance to Edward and Katherine and the document stated that she quitclaimed the land of Garland and that of his widow at the date of the deed. Margaret and Mary (the widow) died. Margaret's children then decided to partition the lands involved. The answer to that action disputed title on the grounds that Margaret had conveyed her interest in the lands to Ds. The Chancellor decreed in favor of Margaret's children. Ds appealed.

BRADLEY V. FOX, 129 N.E.2d 699 (1955) CASE BRIEF

BRADLEY V. FOX

129 N.E.2d 699 (1955)

NATURE OF THE CASE: This was a dispute over the joint tenancy disposition of a murderer.

FACTS: At the time of the commission of this murder, D held property in joint tenancy with his victim. The issue and dispute was whether he could take the property.

ESTATE OF MARTIGNACCO 689 N.W.2d 262 (Minn. App. 2004) CASE BRIEF

ESTATE OF MARTIGNACCO

689 N.W.2d 262 (Minn. App. 2004)

NATURE OF THE CASE: Brother of decedent, Rudolph Martignacco (P), and former personal representative of decedent's estate, challenged a grant of summary judgment in favor of the biological son of decedent, Robert Reed (D), after the son filed a petition to determine paternity under Minn. Stat. 524.2-114(2) (2002) of the probate code.

FACTS: D's birth certificate recites that his father is Harold Reed and his mother is Lucille Reed. Harold and Lucille were married at the time of D's birth. D believed that Harold Reed was his father. Harold Reed similarly believed that D was his son. In 1989, after Harold's death, D learned from his mother that Adolph Martignacco was actually his biological father. D subsequently met Adolph, and the district court found that they 'developed a relationship, [and] spent time together.' Adolph chose not to introduce his son to his family members. D's very existence came as a complete surprise to the rest of the family. D's mother, Lucille, submitted an affidavit that explained that D was conceived as a result of an extramarital affair with Adolph while she was married to Harold. She stated that Adolph's name was not placed on respondent's birth certificate in order to avoid embarrassment and humiliation. Adolph died intestate in 2002. During his lifetime he had never married, nor sired any children other than respondent. At the time of his death, it was generally believed that decedent was survived only by his three brothers, who expected to inherit decedent's estate. These assumptions changed when D attended the funeral. P initiated intestate probate proceedings and filed a petition for formal adjudication of intestacy, determination of heirs, and appointment of personal representative. D subsequently filed his objection to the petition and asserted that he was the son of decedent and decedent's sole surviving heir. The district court appointed P as personal representative of the estate and otherwise found that decedent's heirs were 'not determined at this time.' D filed a petition to determine paternity under Minn. Stat. 524.2-114(2) (2002) of the probate code. D submitted an envelope -- allegedly handled by decedent -- to a testing lab at Orchid GeneScreen for preliminary genetic testing. Both parties were made aware of the genetic-test results, which proved decedent's paternity to a 99.99% degree of certainty. The district court (1) removed P as personal representative of decedent's estate; (2) appointed D as personal representative of decedent's estate; and (3) ordered the exhumation of decedent's body for the purposes of further DNA genetic testing. The district court's order was appealed but was denied discretionary review of that portion of the appeal pertaining to exhumation of decedent. Decedent's body was exhumed and genetic testing was performed. Based on those conclusive test results, the parties subsequently stipulated -- and the district court found -- that D is, in fact, the biological child of the decedent. The parties filed cross motions for summary judgment. The district court granted D's motion for summary judgment and determined that D was the decedent's sole heir. This appeal follows.

ESTATE OF STERN V. STERN, 311 S.E.2d 999 (N.C. App. 1984) CASE BRIEF

ESTATE OF STERN V. STERN

311 S.E.2d 999 (N.C. App. 1984)

NATURE OF THE CASE: This was a dispute over an intestate estate.

FACTS: Stern died intestate, survived by his maternal and paternal aunts and uncles. Stern's parents lived together in Canada but were never married. Stern was raised by both parents until his mother died when he was six. From the age of six, Stern was raised by his father who died in 1979. Stern got an estate worth $500,000. Stern then died intestate the next year. The trial court ruled that Stern's maternal heirs were entitled to inherit to the exclusion of his paternal heirs. The paternal heirs appealed.

MATTER OF THE HEIRS OF HODGE, 470 So.2d 740 (Fla.App. 1985) CASE BRIEF

MATTER OF THE HEIRS OF HODGE

470 So.2d 740 (Fla.App. 1985)

NATURE OF THE CASE: This was a case about virtual adoption.

FACTS: Appellee was three years old when her mother died and her father gave her to the Hodges. There was no testimony directly that there was an agreement to adopt the child. When the girl was nine, she was told that she was adopted and not their natural child. Other evidence indicated that she lived with the Hodges until she married at age 17, was called a Hodge, and accepted treatment as a daughter. Mr. Hodge signed her report cards in school and she paid his funeral expenses and attended his funeral. The trial judge ruled that a virtual adoption had occurred. This appeal resulted.

ESTATE OF RAPP V. COMMISSIONER 140 F.3d 1211 (9th Cir. 1998) CASE BRIEF

ESTATE OF RAPP V. COMMISSIONER

140 F.3d 1211 (9th Cir. 1998)

NATURE OF THE CASE: This was a dispute over whether a trust qualified as terminable interest property. Estate (P) challenged a decision, which determined that a trust did not qualify as qualified terminable interest property as defined by 26 U.S.C.S. 2056(b)(7).

FACTS: Bert Rapp died in February 1988. He was survived by his wife and two children. Bert willed his one-half of the community property to a trust. The issue was whether the trust qualified as a QTIP trust and thus qualifying it for a marital tax deduction. If a terminable trust qualifies as a QTIP, the surviving spouse can elect the marital deduction as if the interest passed directly and without restraint to the surviving spouse. The will left by Bert did not create such a trust but the will as modified by the California probate court did create a QTIP trust. When Bert's will was admitted to probate, Mrs. Rapp asked the probate court to modify the will so that the trust created would qualify for the QTIP exception. This petition relied on the power of probate court to modify or terminate a trust upon the consent of all parties or to modify or terminate a trust due to changed circumstances. Mrs. Rapp's petition was granted. The IRS did not appear as it was not notified. After the probate order was issued, the executor filed an application for extension of time to file a federal estate tax return. A final tax return was prepared and submitted and the executor claimed a $3,683,899.38 marital deduction which in effect reduced the total tax owed from the $156,424 submitted on the request for extension to nothing. The IRS sent a notice of deficiency stating that the executor failed to fully substantiate the marital deduction claim; the IRS only allowed a $435,262.50 claim from the total. The tax court eventually ruled that the probate court reformation was not controlling for tax matters.

ESTATE OF VISSERING V. COMMISSIONER 990 F.2d 578 (1993) CASE BRIEF

ESTATE OF VISSERING V. COMMISSIONER

990 F.2d 578 (1993)

NATURE OF THE CASE: This was an action contesting the assessment of estate tax. Appealed. Vissering (P) appealed a decision which held that at his death decedent held a general power of appointment, under 26 U.S.C.S. 2041, and which required the assets of a trust be included in his gross estate for federal estate tax purposes.

FACTS: The trust at issue was created by the decedent's mother. Under the terms of the trust, decedent was a co-trustee as well as a beneficiary. The trust authorized the trustees to pay any amount of the principal to the beneficiaries which the trustees deemed to be 'required for the continued comfort, support, maintenance or education' of the beneficiaries. Based on this language, the IRS found that the decedent had powers over the trust corpus, unrestrained by any ascertainable standard, which permitted him to invade it for his own benefit. In making this determination, they focused on the language relating to the 'comfort ' of the beneficiaries. The IRS therefore included the trust corpus in the decedent's gross estate.

OLD COLONY TRUST CO. V. UNITED STATES 423 F.2d 601 (1970) CASE BRIEF

OLD COLONY TRUST CO. V. UNITED STATES

423 F.2d 601 (1970)

NATURE OF THE CASE: This was an action to recover estate tax. Old Colony (P) appealed from a decision in favor of the government in an estate and trust law tax action.

FACTS: The income of the trust at issue was payable to the settlor's son: eighty percent of the income was to be paid to the son, and the rest was to be added to the principal. The trust instrument gave the trustees absolute discretion to increase the percentage of income payable to the son in case of illness or changed circumstances, or to decrease the payments if they deemed it to be in the son's best interest. The trust instrument also gave the trustees broad management powers and investment authority. During his life, the settlor was also a trustee of the trust. Upon the settlor's death a tax was assessed against his estate for the principal which settlor has contributed to the trust. The executor of the estate (P) paid the tax and sued to recover the amount paid.

ESTATE OF MAXWELL V. COMMISSIONER 3 F.3d 591 (1993) CASE BRIEF

ESTATE OF MAXWELL V. COMMISSIONER

3 F.3d 591 (1993)

NATURE OF THE CASE: This was an action challenging assessment of estate tax. Appealed. Estate and executors (P) appealed from a decision affirming the assessment of tax deficiencies on grounds that the conveyance of decedent's personal residence during her life constituted a transfer with retained life estate within the meaning of 26 U.S.C.S. 2036.

FACTS: About two years before her death, decedent transferred ownership of her house to her son and his wife. Along with the transfer, the parties agreed that decedent would continue to live in the house, but would pay rent to her son. The son agreed to pay certain expenses associated with the property. Decedent's son paid $270,000 for the property, executing a mortgage note in decedent's favor. Evidence indicates that decedent did not make regular rental payments to her son, and that the son did not make regular payments on the mortgage. Further, there was evidence that neither party intended for the mortgage to be paid. The decedent reported the sale of the house on her income tax return, but did not pay tax on it. After decedent's death, her son sold the house for $550,000. On decedent's estate tax return, the estate (P) reported only the amount outstanding on the mortgage note. The IRS found that the transaction constituted a transfer with a retained life estate, not a bona fide sale, and assessed a deficiency against the estate to adjust for the difference between the fair market value of the house and the amount of the mortgage note. P appealed to Tax Court, which affirmed the IRS. P appeals again.

ESTATE OF CRISTOFANI V. COMMISSIONER, 97 T.C. 74 (1991) CASE BRIEF

ESTATE OF CRISTOFANI V. COMMISSIONER

97 T.C. 74 (1991)

NATURE OF THE CASE: This is an appeal of a deficiency assessment. Estate (P) estate sought review of the decision which disallowed exclusions under 26 U.S.C.S. 2503(b) for payments by the estate to decedent's grandchildren.

FACTS: Settlor created a trust for the benefit of her two children and five grandchildren. She intended to transfer most of the trust assets into the trust during her lifetime. Under the terms of the trust, at the time a transfer was made, any of the beneficiaries had the right to withdraw an amount from the trust corpus equal to the Federal Gift Tax Exclusion ($10,000). This right was to exist for 15 days following the transfer. During her life, Settlor made two separate transfers of property into the trust, each worth $70,000, during different taxable years. She did not report these transfers as taxable gifts. Instead, she claimed exclusions of $10,000 for each of her children and grandchildren, totaling the full amount of the transfers. The commissioner (D) allowed the exclusions made with respect to Settlor's two children, who had a present interest in the trust income, but disallowed those claimed for the grandchildren.

HOLTZ'S ESTATE V. COMMISSIONER 38 T.C. 37 (1962) CASE BRIEF

HOLTZ'S ESTATE V. COMMISSIONER

38 T.C. 37 (1962)

NATURE OF THE CASE: This is an appeal of an assessment of gift tax. Holtz's Estate (P) sought review of a decision by the IRS which determined deficiencies in gift tax against the estate.

FACTS: Settlor created an inter vivos trust. During his lifetime, the income from the trust was to be paid to Settlor, as was that portion of the principal which the trustee deemed to be desirable for the Settlor's comfortable support, or for his emergency needs. Upon Settlor's death, the income was payable to his wife for her life, if she survived him, and it contained a similar provision with respect to invasion of the principal for her benefit. Upon the death of both Settlor and his wife, the trust was to terminate, and the income distributed to the survivor's estate. During his life, Settlor transferred assets into the trust. The Commissioner (D) determined that these constituted taxable gifts, and assessed a tax against Settlor based on the amount of the transfer, less Settlor's interest in the trust. Settlor's estate (P) contends that the transfers were not completed gifts at the time they were made, and were therefore not taxable to Settlor as gifts.

ESTATE OF WOODWORTH 18 Cal. App. 4th 936, 22 Cal. Rptr. 2d 676 (1993) CASE BRIEF

ESTATE OF WOODWORTH

18 Cal. App. 4th 936, 22 Cal. Rptr. 2d 676 (1993)

NATURE OF THE CASE: This was an action to determine distribution of trust assets. Appealed. The Regents (D), potential beneficiary, sought review of an order, which rejected their claim to the remainder of a testamentary trust and concluded that based on the date of death of the life tenant, Niece and Nephew of testator, were entitled to the trust assets.

FACTS: Testator left a portion of his estate in trust, with his wife as the life tenant. Upon his wife's death, the trust was to terminate, and the assets were to be distributed to his sister or her heirs at law. Testator's sister predeceased his wife. The sister was survived by her husband, who also died before Testator's wife, leaving the residue of his estate to the Regents of the University of California (D). Testator also had two brothers, both of whom predeceased him. One of the brothers died without issue; the other was survived by a natural daughter and an adopted son. Upon the death of Testator's wife, the trustee bank (P) petitioned for a determination of those persons who were entitled to the trust assets, and whether the sister's heirs at law should be determined as of the date of the sister's death, or the date of death of Testator's wife. The Probate Court found that the heirs should be ascertained as of the date of death of the life tenant, and ordered the trust assets distributed to the issue of Testator's brothers. D appealed.

DEWIRE V. HAVELES 404 Mass. 274, 534 N.E.2d 782 (1989) CASE BRIEF

DEWIRE V. HAVELES

404 Mass. 274, 534 N.E.2d 782 (1989)

NATURE OF THE CASE: This was an action for a declaration of rights to trust assets. Appealed. Dewire (P), granddaughter of testator, petitioned for a declaration of rights over the distribution of her share of her father's trust income after the father's death.

FACTS: Testator left most of his estate in a residuary trust. The income was payable to Testator's wife for life, then to his son, his son's widow, and his son's children. In the will, Testator expressed his intent that all his grandchildren share equally in the income from the estate. The will provided that the trust was to terminate twenty-one years after the death of the survivor of the children of Testator's son, at which time the principal was to be distributed among the lineal descendants of the grandchildren. The will did not contain any provisions regarding the distribution of income of a deceased grandchild, or regarding what the trustee was to do with the income between the time of death of the last grandchild and the termination of the trust. Testator's son had a total of six children, all of whom were found to be part of the class of grandchildren entitled to a share of the trust income. The first of the grandchildren to die was survived by a daughter (P), who petitioned for distribution of her deceased grandfather's share of the trust income.

CLOBBERIE'S CASE 2 Vent. 342, 86 Eng. Rep. 476 (1677) CASE BRIEF

CLOBBERIE'S CASE

2 Vent. 342, 86 Eng. Rep. 476 (1677)

NATURE OF THE CASE: Action to construe a bequest.

FACTS: The bequest at issue left a sum of money to the beneficiary at her age twenty-one or her date of marriage, to be paid unto her with interest, and if she dies before either, the money was to go to her executor.

TAIT V. COMMUNITY FIRST TRUST CO. S.W.3d 2012 CASE BRIEF

TAIT V. COMMUNITY FIRST TRUST CO.

____ S.W.3d ____ 2012

NATURE OF THE CASE: Debbie Tait, Kerry Jones, Leanna Lackey, and Lesia Winters (Ds) appeal the order denying their claim to a share in the Fowler Family Trust over which Community First Trust Company (P) serves as trustee.

FACTS: William J. Fowler (no offspring) and his wife Annie R. Fowler (six children from a previous marriage) established the Fowler Family Trust. The trust res consisted of the following three classes of property: (1) property that William had owned separately, (2) property that Annie had owned separately, and (3) property that William and Annie had owned jointly. The trust authorized the trustee to dispense to William and Annie the income and principal during their lifetimes as needed for their support. Although initially the trust was revocable, the trust instrument provided that it would become irrevocable when either William or Annie died. At the death of the survivor, the trust was to terminate, and the principal and income of the trust was to be distributed in the following manner. The jointly owned property and William's separate property was to be apportioned equally among William's two stepchildren, Dale Paschal Jones and Billy Ray Jones, and ten of his nieces and nephews, including Tommy Dean Fry. Annie's separate property was to be disbursed in equal shares to three of her children. Annie died in May 2001. William's stepson Dale Paschal Jones died in November 2004, survived by his daughters, Leanna Lackey and Lesia Winters (Ds). William's other stepson, Billy Ray Jones, died in November 2008, survived by his daughters, Debbie Tait and Kerry Jones (Ps). William's niece, Tommy Dean Fry, died in June 2009 without issue. After the deaths of these three named beneficiaries, William died in January 2011. P filed a petition to construe the trust taking the position that the interests of the deceased beneficiaries lapsed because they predeceased William, the surviving settlor, and that Ds, the descendants of William's stepsons, were not entitled to share in the remainder of the trust. P relied on the anti-lapse provision of Arkansas Code Annotated section 28-26-104(2) (Repl. 2012). Ds argued that the interests of the deceased beneficiaries did not lapse because their interests vested at the time the trust was created. Applying the 'common law rule,' the court found that Ds could not share in the trust because their fathers' interests lapsed when they predeceased William. Ds appealed.

IN RE ESTATE OF GILBERT 156 Misc. 2d 379, 592 N.Y.S.2d 224 (1992) CASE BRIEF

IN RE ESTATE OF GILBERT

156 Misc. 2d 379, 592 N.Y.S.2d 224 (1992)

NATURE OF THE CASE: Executor (D) of defendant's father's estate, filed an action to have beneficiary's (D)renunciation of his interests in the discretionary trusts of his father's estate declared void.

FACTS: Settlor's will created two discretionary trusts for each of his four children, and one trust for the benefit of his wife during her life. After the wife's death, the principal of her trust was to be distributed in equal shares into the trusts of his children. One of the children, Lester, disclaimed his interest in his father's estate. Lester had no issue at the time he disclaimed. The executor of Settlor's estate, along with the guardian ad litem for Settlor's minor grandchildren (P), filed this petition, arguing that Lester may renounce his share only if, and at such time as, the trustees exercise their discretion to distribute trust assets to him, and that his disclaimer in this case is therefore premature. The court found that, despite the fact that the trust was discretionary, Lester had a current property interest in it, and that his renunciation complied with the applicable statute.

LORING V. MARSHALL 396 Mass. 166, 484 N.E.2d 1315 (1985) CASE BRIEF

LORING V. MARSHALL

396 Mass. 166, 484 N.E.2d 1315 (1985)

NATURE OF THE CASE: Loring (P), trustee, commenced an action for instructions regarding the distribution of the remainder of a trust created by the testator.

FACTS: Settlor left the residue of her estate in trust, with her brother, sister, and two nephews as income beneficiaries. The nephews were given a special power of appointment with respect to their wives and issue. This special power was further limited in that only income could be appointed to the wife. One of the nephews died unmarried and without issue. The other nephew, Cabot Morse, who had a wife and a son from a prior marriage, exercised his power of appointment over the trust income in favor of his wife. However, he did not exercise his power with respect to the principal, and his will clearly expressed his intent not to exercise it in favor of his son, Cabot Morse, Jr. Cabot Morse, Jr. predeceased his father. Settlor further provided that, if neither nephew exercised his power, the trust assets were to be distributed to certain charities (D). In earlier actions, the court determined that Cabot Morse's exercise of his power over the trust income in favor of his wife was valid, notwithstanding the fact that he failed to exercise the power with respect to the principal; and that D had no interest in the trust funds, despite the fact that neither nephew fully exercised his power, since Settlor's clear intent was to keep the trust property in her family. The trustees (P) filed the present action after the death of Cabot Morse's wife, to determine how the principal should be distributed.

BROWN V. MILLER 2 So.3d 321 (2008) CASE BRIEF

BROWN V. MILLER

2 So.3d 321 (2008)

NATURE OF THE CASE: This is an appeal from a partial summary judgment order invalidating a transfer of over seven million dollars and directing that such monies be held in constructive trust.

FACTS: Thomas W. Miller, Jr. (D) was the trustee and lifetime beneficiary of a trust established by his wife. Upon Elinor's death in 1999, her trust assets were distributed to designated charities and family members with the balance being divided into three separate sub-trusts, designated as Trust A-1, Trust A-2 and Trust B, with each serving a distinct purpose. This appeal relates solely to the Trust A-2 assets. The trust states in part: The Trustee shall also pay to my husband (D) such additional amounts of principal from Trust 'A-2' as he may from time to time request. . . .3. Upon the death of my husband, THOMAS W. MILLER, JR., the Trustee shall pay over and distribute the then remaining balance of Trust 'A-2', if any, to such person or persons, and in such manner, as he shall appoint by his last Will and Testament, which makes reference to said power of appointment, including in him the power to appoint to his estate. Any portion of Trust 'A-2' not effectively appointed by my husband, THOMAS W. MILLER, JR., shall continue to be held in trust for the lifetime of my son, THOMAS W. MILLER, III. On February 11, 2000, D executed a third codicil to his last will and testament. ID purported to exercise his power of appointment by directing that, upon his death, the Trust A-2 balance be distributed to The Elinor and T. W. Miller, Jr. Foundation ('the Foundation'). Between the date of his wife's death and January 25, 2002, D as trustee, transferred approximately $ 420,000 from Trust A-2 to himself and others. On January 25, 2002, D as trustee, then transferred the remaining balance of the Trust A-2 assets (approximately seven million dollars) to the Bill Miller Trust. D died in April 2004. His son, Tom (P), then brought the underlying action against his estate, the personal representatives of his estate, the trustees of the Bill Miller Trust, and the Foundation (collectively referred to as 'Appellants') to set aside the seven-million-dollar transfer to the Bill Miller Trust and to invalidate D's purported exercise of his power of appointment. In granting P's motion for partial summary judgment, the trial court found that the transfer at issue was improper for three reasons: (1) it was contrary to the trust language limiting transfers to Elinor's husband; (2) it was contrary to the trust language limiting transfers from 'time to time;' and (3) it violated Ds duty to act in good faith to protect the interests of the Trust A-2 contingent remaindermen. D appealed.

BEALS V. STATE STREET BANK AND TRUST CO. 367 Mass. 318, 326 N.E.2d 896 (1975) CASE BRIEF

BEALS V. STATE STREET BANK AND TRUST CO.

367 Mass. 318, 326 N.E.2d 896 (1975)

NATURE OF THE CASE: This was an action to determine distribution of a portion of a trust. Bank (P) sought a determination of the proper distribution to be made of a portion of a trust created under a residuary clause of a will establishing the trust. The court transferred the case.

FACTS: Settlor left all his property in a trust, with his wife as the income beneficiary for her life. At her death, the trust was divided among settlor's three surviving daughters. Settlor's will provided that each portion of the trust set aside for a daughter pay the income of that portion to her for life, and gave each daughter a testamentary power of appointment. One of the daughters, Isabella, did not expressly exercise her power of appointment in her will, although she had previously executed an instrument which limited the exercise of her power to descendants of settlor. In her will, Isabella left the residue of her estate to the issue of her sister, Margaret (D). If the will is construed such that, by naming Margaret's issue as residual takers, Isabella exercised her power of appointment in their favor, then they would take Isabella's share of the trust. If it is found that Isabella did not exercise her power, Margaret's issue would take one-half of Isabella's share of the trust, and the issue of her other sister, Jane, would take the other half. The trustees (P) have petitioned the court for instructions as to how Isabella's share of the trust should be distributed.

IRWIN UNION BANK & TRUST CO. V. LONG 160 Ind. App. 509, 312 N.E.2d 908 (1974) CASE BRIEF

IRWIN UNION BANK & TRUST CO. V. LONG

160 Ind. App. 509, 312 N.E.2d 908 (1974)

NATURE OF THE CASE: This was petition to execute on a judgment. Appealed. Bank (D) sought review of the order which levied a writ of execution upon a trust in satisfaction of a judgment obtained by Long (P), ex-wife, from a divorce decree.

FACTS: Long (P) obtained a judgment against her ex-husband in a divorce decree. To satisfy the judgment, she sought to execute on funds in a trust set up for her ex-husband by his mother. The trust instrument gave the husband the right to withdraw up to 4% of the principal of the trust in any given year. The lower court held that this amount of the trust principal was not exempt from execution, and ordered a writ of execution. The trustee (D) appeals. On appeal, the court found that the right to elect to withdraw principal was a general power of appointment.