1. For Your Amusement: PROPERTY A SLIDES 2-26-15 http://www.usmagazine.com/entertainment/news/christina-aguilera-does- incredible-britney-spears-impression-on-fallon-2015242

2. Thursday Feb 26 Music: Retrospective Hits of 1947 Lunch Today: Meet on the Bricks @ 11:55 Boyd * Daniels * Huang * Maneri * Mason * Whitley Redwood Reminder: Critique of Rev. Prob. 2G Due Today @ 10 am

3. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction General Introduction Intestate Succession Generally Working with Specific State Statutes Wills Wills Generally Generally Will Formalities Substantial Compliance State of Mind Requirements

4. Wills: Generally (from Last Time) A.Mechanism for Transfer of Property at Death B.Competing Concerns Follow Wishes of Deceased: Intent Crucial Protect Family Provide Sufficient Indication of Transfer to Gov’t C.Requirement of “Testamentary Intent” Usually Proved by Meeting Formalities & Other Surrounding Circumstances Don’t Treat as a “Formality” Address in Conjunction with State of Mind

5. Wills: Generally D. Limits on Following Testator’s Intent Some Substantive Limits (Next Two Slides) Must Meet Formalities Must Meet State of Mind Requirements Need Sound Mind/Capacity No Fraud, Duress, Undue Influence Testamentary Intent (if at Issue)

6. Wills: Substantive Limits I (Even if Will is Constructed Perfectly) A. Homestead & Related Rules: Home & household stuff to spouse/minor children Examples in FL Constitution & Statutes B. Spousal Elective Share (as described in outline) C. Post-Will Marriage/Divorce FL: new spouse: spousal share unless intent expressed in will OR prenuptial agreement FL & other states: divorce revokes will as to ex

7. Wills: Substantive Limits II (Even if Will is Constructed Perfectly) D. Pretermitted (UNMENTIONED) Children: GET intestate share in some states Usually limited to afterborn E.General Points Collectively These Rules Very Protective of Immediate Family If typical married middle class person, probably no choice re much of estate, which goes to spouse/homestead Substantive Limits Above Spousal property issues noted with Intestacy

8. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction General Introduction Intestate Succession Generally Working with Specific State Statutes Wills Generally Will Formalities Substantial Compliance State of Mind Requirements

9. Will Formalities: Brief Introduction Technical Rules That Must Be Met to Make Will Valid Re Testator’s Signature Re Witnesses Not Complex, But Vary Greatly From State to State General Overview in Supplement (S42-44) Florida Info as One Specific Example (S45-48) We’ll Do Penn. Cases as Another Example

10. Will Formalities: Brief Introduction Technical Rules That Must Be Met to Make Will Valid Not Complex, But Vary Greatly From State to State Use Review Problems to Help You Familiarize Yourself Later Today, I’ll Talk About General Approach in Context of Parts of Rev. Prob. 3A Rev. Prob. 3B: We’ll Do Formalities Qs Tomorrow Rev. Probs. 3A (Remaining Issues) & 3D Can Do Formalities Issues on Your Own Probably Work Through Some in DF Next Week

11. ARCHES: DQs 3.01-3.02 DELICATE ARCHES

12. Will Formalities: Signature at “End”: Rule DQ3.01-3.02 (Arches) Many States Require T to Sign at “End” of Will Seems like relatively bright line, but not always clear Can use policy behind rule to resolve ambiguity or vagueness (even though based in a statute) Why have such a rule? What legal test do PA courts use to interpret?

13. Will Formalities: Signature at “End”: Cases DQ3.01-3.02 (Arches) Stasis: Why Signature Problematic? Why Did Ct Allow? Swire (Discussed in Stasis @ S51-52) Why Signature Problematic? Why Did Ct Allow?

14. Will Formalities: Signature at “End”: Cases DQ3.01-3.02 (Arches) Weiss: Why Signature Problematic? Why Different from Other Two Cases? Story That Makes Weiss More Like Stasis? Does Identity of Relevant Parties Matter? Does Policy Behind Rule Makes Sense of the Three Results?

15. ARCHES DQ3.02: Is signature at the “end” of the will if there’s a gap of 4-5 inches between the end of the text and the signature line? I, Will Sandtrusts, being of sound mind and body, leave my property as follows: To my son Jeremy, I leave my collections of Victorian Erotic Art and of Ancient Coins, all of the furnishings of the game room at the Rhode Island Mansion, and a one-half interest in my yacht, Salt Codicil. To my son Kevin, I leave all of my CDs and DVDs, and a one-half interest in my yacht, Salt Codicil. To my most beloved daughter Louise, I leave all of the furnishings from the rooms of my late wife in both the Rhode Island Mansion and the Manhattan apartment and all of the boats I own except for Salt Codicil. To the Society for the Preservation of Ancient Property Rules, I leave the sum of $45,000. To Jack Jackson, the manager of the Vanderbilt Yacht Club, I leave the sum of $25,000 for years of helpful service. To the longtime servants at the Rhode Island Mansion, Ella, Max, Genevieve, Aloysius, and Ferdinand, I leave $12,000 each, as well as $2,000 to young Ethan, who has been very helpful in his short stay. To Natasha Fatale, who has made my last years bearable, I leave the Manhattan apartment and all its furnishings except those listed above for Louise. The Rhode Island Mansion, after the above gifts have been bestowed, is to go in equal parts to Jeremy, Kevin, and Louise, except that if either Kevin or Jeremy sell or give away their hslf of the yacht Salt Codicil during their lifetimes, their share of the mansion will then go to Louise. The rest, remainder, and residue of my estate is to be divided equally among my grandchildren living at the time of my death. Will Sandtrust___ Xmas Day 2012

16. Langbein & Purposes of Wills Formalities Underlying Problem: Conflict between Intent & Evidence: Strict safeguards, trying to ensure really good evidence of T’s intent, sometimes invalidate genuine expressions of T’s intent. Weiss = Example of common problem; will invalid b/c formality not met; seems to defeat intent. Conflict arises b/c of two kinds of concerns: 1. Want to be sure “Will” is what T wrote (not forged, replaced or altered) 2. Want to be sure T understood document in Q to be a Will

17. Langbein & Purposes of Wills Formalities Want to be Sure “Will” is What T Wrote Evidentiary Function: Provide evidence after T is dead that document is really the will Protective Function (overlaps): Protects against fraud, forgery, duress

18. Langbein & Purposes of Wills Formalities Want to be Sure T Understood Document to be a Will Part of more general problem of communication between humans: sorting vague from concrete HIM: “I Could Spend the Rest of My Life with You”

19. Langbein & Purposes of Wills Formalities Want to be Sure T Understood Document to be a Will Part of more general problem sorting vague from concrete HER: “Yes, I’ll Marry You!!!” [UH- OH!]

20. Langbein & Purposes of Wills Formalities Want to be Sure T Understood Document to be a Will Cautionary Function : (“Whoa, Dude” Effect) Channeling Function: Channel (guide) intent into legally recognizable forms.

21. Will Formalities: Review Problems & Exam Qs Generally Working with Different Kinds of Uncertainty: 1.Different States Have Different Rules 2.Rules Applied to Some Sets of Facts Might Not Produce Clear Result 3.Problem Might Not Supply All Facts You’d Need to Apply Rules with Certainty Required Tasks to Address Uncertainty Vary with Type of Q

22. Will Formalities: Review Problems & Exam Qs Q1: Lawyering Qs (See 2/3 Slides) 1.Different States Have Different Rules: Identify issues where you’d have to look up rules Indicate range of possible rules 2.Rules Applied to Some Sets of Facts Might Not Produce Clear Result 3.Problem Might Not Supply All Facts You’d Need to Apply Rules with Certainty For each issue/rule that might be significant, identify factual Qs that would need to be resolved Identify tasks that would enable you to resolve those fact Qs

23. Will Formalities: Review Problems & Exam Qs Q2: Short Problems (See 1/22 Slides) 1.Different States Have Different Rules: 2.Rules Applied to Some Sets of Facts Might Not Produce Clear Result Make Best Arguments for Each Party Use Literal Application, Cases, Policy Behind Rule 3.Problem Might Not Supply All Facts You’d Need to Apply Rules with Certainty Identify relevant missing facts Explain how they might affect result

24. Will Formalities: Review Problems & Exam Qs Q4: Issue-Spotting Qs (See 2/12 Slides) First Need to Identify Most Contestable Issues 1.Different States Have Different Rules: If Rule Not Supplied (e.g., in Statute), Indicate Range of Possible Rules 2.Rules Applied to Some Sets of Facts Might Not Produce Clear Result Make Best Arguments for Each Party Use Literal Application, Cases, Policy Behind Rule 3.Problem Might Not Supply All Facts You’d Need to Apply Rules with Certainty Identify relevant missing facts Explain how they might affect result

25. Will Formalities: Review Problem 3A (S61) Part of a Larger Issue-Spotter No specific jurisdiction or statute listed, so: 1.Identify Areas Where There Might Be Serious Qs Serious = Likely to be Strongly Contested Means if No Serious Q, Can Skip or Do Very Quickly Qs Here That Are Not “Serious” Did IV sign at end? (No evidence otherwise) Are witnesses old enough? (Doctor & 2 Nurses)

26. Will Formalities: Review Problem 3A Part of a Larger Issue-Spotter No specific jurisdiction or statute listed, so: 1.Identify Areas Where There Might Be Serious Qs 2.For Each Area Identified: Discuss Possible Rules & Outcome Under Each If I want you to use specific state or statute, I’ll give you statutory language Otherwise can use Fl and other specific authorities provided as examples

27. Review Problem 3A: One Serious Issue Many States: Ws must sign “in presence of Testator” Literal Arguments Would test be met if T died before W’s finished signing? Is sleeping different than death here? Why or Why Not? Purpose Arguments Possible purposes of rule? Might think in terms of Langbein rationales for formalities

28. Review Problem 3A: Presence Requirement & Sleeping Testator Possible Purposes of Rule Include: Evidentiary Function: All part of single ceremony done w/in reasonable time, so Ws are sure of document. Would be OK Here Would be OK Here Protective Function: Maybe presence is evidence to Ws everything’s OK. (Cf. someone rapidly rolls T in and out) Unclear here; may be evidence of severe health issues Unclear here; may be evidence of severe health issues Cautionary Function: T awareness of Ws as part of ceremony, so T can yell stop anytime until Ws have finished signing. If so, maybe T has to be awake until end If so, maybe T has to be awake until end

29. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction Intestate Succession Generally Working with Specific State Statutes Wills Generally Will Formalities Substantial Compliance State of Mind Requirements

30. Substantial Compliance: Overview Langbein: Will should be valid if substantially complies w formalities Cf. Contracts: “Substantial Performance” Supports with reference to purposes of formalities noted above His view adopted by Uniform Probate Code, NJ, some other states.

31. Substantial Compliance: (DQ3.03) DQ3.03: Substantial Compliance: Arguments Pro & Con I’ll leave for you Review Problem 3F Opinion/dissent Q about whether a state should adopt “substantial compliance” Can use to work through both sides of this issue.

32. Substantial Compliance: Legal Test (DQ3.04) Langbein: Don’t need all formalities where circumstances suggest: Reasonable certainty that T intended the document to be will Reasonable certainty that there has been no fraud, forgery, alteration, replacement NJ/UPC Test: Proponent of will must show … “… by clear and convincing evidence… … that the will substantially complies with the statutory requirements.”

33. Substantial Compliance: Legal Test (DQ3.04) NJ/UPC Test: Proponent of will must show … “… by clear and convincing evidence… … that the will substantially complies with the statutory requirements.” Burdens of Proof Beyond a Reasonable Doubt (criminal) (95+% certainty) Preponderance of the Evidence (ordinary civil) (51% certainty)

34. Substantial Compliance: Legal Test (DQ3.04) NJ/UPC Test: Proponent of will must show … “… by clear and convincing evidence… … that the will substantially complies with the statutory requirements.” Burdens of Proof Beyond a Reasonable Doubt (criminal) (95+% certainty) Clear & Convincing Evidence (65-75%(?) certainty) Used, e.g., for fraud and for adverse possession Preponderance of the Evidence (ordinary civil) (51% certainty)

35. Substantial Compliance: Legal Test DQ3.04: Arches NJ/UPC Test: Proponent of will must show … “… by clear and convincing evidence… … that the will substantially complies with the statutory requirements.” Is this a sensible way to handle Langbein’s concerns? What result if you apply this test to the facts of Weiss?

36. Review Problem 3B: ThreeParts Tomorrow: Formalities Issues (Redwood) Tomorrow: Formalities Issues (Redwood) Tomorrow: Substantial Compliance (Use Legal Test from DQ3.04) (Shenandoah) Tomorrow: Substantial Compliance (Use Legal Test from DQ3.04) (Shenandoah) Tuesday: Undue Influence (Contested Discussion w Critique) Problem says “The Will Was Admitted to Probate.” Means?

37. Review Problem 3B Problem says “The Will Was Admitted to Probate” Means: Problem says “The Will Was Admitted to Probate” Means: No problems visible on the face of the will, e.g., No problems visible on the face of the will, e.g., # of witnesses sufficient # of witnesses sufficient Signed and in the right location Signed and in the right location Does not give you info on other problems, e.g., Does not give you info on other problems, e.g., Presence requirements might not be met Presence requirements might not be met Witnesses might not be old enough Witnesses might not be old enough

38. Review Problem 3B (Shenandoah) Substantial Compliance Assume Both Presence Reqmts Not Met Assume Both Presence Reqmts Not Met Apply Test (Some States): [W]hen formal defects occur, proponents [must] prove by clear and convincing evidence that the will substantially complies with the statutory requirements. Apply Test (Some States): [W]hen formal defects occur, proponents [must] prove by clear and convincing evidence that the will substantially complies with the statutory requirements. Arguments Should Consider: Arguments Should Consider: Purposes of Presence Reqmts Purposes of Presence Reqmts Video might or might not be found and/or be admissible Video might or might not be found and/or be admissible

39. Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death General Introduction Intestate Succession Wills Generally Will Formalities Substantial Compliance State of Mind Requirements Capacity Undue Influence

40. BISCAYNE: DQ3.05-3.06 SUNRISE AT ADAMS KEY

41. Capacity Generally (DQ3.05: Biscayne) Normally we protect insane people by not allowing them to enter contracts. Concern re wasting assets Concern re leaving self or dependents destitute Why not allow them to draft wills if no dependents? (After death, no need to take care of themselves)