“In Terrorem” Clause
“A beneficiary shall forfeit his bequest under the will if he contests the validity of the will.”
Rule: Is valid in Texas, but will not apply to an attack on the will that is based on reasonable grounds and instituted in good faith.
Property Destruction Orders Under the Will Court Will:
Weigh social utility of destruction against loss to society of valuable resource.
Weigh motivation of testator.
Probate Process
Probate or administration of estate of living person-VOID.
Probate of one believed to be dead proved by circumstantial evidence
4 year statute of limitations (unless proof that party was not in default-muniment of title only)
Probate of Lost Will
Date of execution Executor
Proof Required
Person is deceased. 4 years have not
elapsed since date of death.
Court has jurisdiction and venue.
Person applying for “letters” is qualified.
Venue
First sought in primary or domiciliary jurisdiction (where decedent was domiciled at time of death).
Intestacy- Statutes of Descent Descent and Distribution
Section 45-Community Property Disposition of Whole Community
Real Estate
Married-No Kids - All TO SS
Married W/Kids of Surviving Spouse- ALL TO SS
Married-Kids not Kids of Surviving Spouse- 1/2 SS & 1/2 KIDS
Other Property
Married-No Kids- ALL TO SS
Married W/Kids of Surviving Spouse- ALL TO SS
Married –Kids not Kids of Surviving Spouse-
½ SS & ½ Kids
Real Estate
Unmarried-W/Kids To Kids equally per stirpes
Unmarried-No Kids ½ to MOM & ½ to DAD (or
brothers and sisters in place)
Will Execution-Section 57
Who may execute?
One who is over 18 years (or married or a member of the armed forces).
Of sound mind
Nature & Extent of his/her property.
Persons who are “natural objects of her bounty.”
The disposition being made. How these elements relate to
form an orderly plan for distribution.
These only set the stage
Testator must have mind & memory relevant to all the thingsANDMust understand the significance of her acts!
Insane Delusion
Delusion- false conception of reality
Insane Delusion- false conception of reality to which testator adheres against all reason and evidence to the contrary
Execution by Interested WitnessTX Section 62“Purging” Statute
A bequest to subscribing witness shall not be void if his testimony proving the will is corroborated by…ONE OR MORE DISINTERESTED
and CREDIBLE PERSONS.Anyone present at the execution.
Section 61 If no corroboration, and intestacy
occurs, interested subscribing witness takes.
LESSER OF WILL SHARE OR INTESTATE SHARE.
Will RevocationIntent & Capacity RequiredSection 63
By subsequent Will Codicil Declaration in writing, executed with
like formalities By T
Destroying Canceling Or causing it to be
done in his presence
DRRDoctrine of Dependent Relative Revocation & Revival
Allows court to disregard a revocation based on a mistake of law or fact.
TEXAS “No Revival of a Revoked Will”
JURISDICTION
SIMILAR PROVISIONS
WILL 1
10,000 to A
Gold watch to B
House to C
$5,000 to D
$3,000 to E
Residuary to X
WILL 2
15,000 to A
Gold watch to B
House to C
Residuary to X
IN TEXAS, IF T DESTROYS WILL # 2 THINKING HE IS
REVIVING WILL # 1, COURT WILL REVIVE WILL
#2 UNDER DRR.
NO partial revocation by physical act in Texas
If will is not found -
Presumption of revocation by physical act.
Integration
Asks:Which pages present @ the time
of signing comprise T’s duly executed will?
Look for: internal continuity staples.
Republication By Codicil
An implied restatement or rewriting of the language of a valid will as of the date of the codicil.
Incorporation By Reference
Applies only when instruments that NEVER HAD testamentary life are incorporated into a will and given TESTAMENTARY EFFECT 1. Will must refer to writing IN
EXISTENCE with reasonable certainty. 2. Will description corresponds to
description and was the one intended by T.
A Devise of Contents:Section 58 (d) (1)
Does mean tangible, personal property
Does not include tangibles, choses in action, “titled” personal property represented by a certificate of ownership requires a formal title transfer.
Caveat: One must expect to find item in such a location.
Example WILL STATES “I leave the contents
of my iron chest to Mary.”At death, the chest contains:a) Passbook with $5,000 showing on
depositb) $5,000c) Automobile title to antique
Mercedes Benzd) Diamond tiara worth $1,000,000
Contractual Wills Two Types
Contract Not RevokeContract To Will
TX: Section 59 AState a contracts existsContain material provisions of the
contract (Contract may be incorporated by
reference into the will if all elements are met)
BASIS OF CONTRACT
Survivor will not revoke
Contract Law AppliesThen Wills Law Applies
Remedy: Constructive Trust
AmbiguitiesLatent
Does not appear on face of
instrument.
Patent
Appears on face of instrument.
Extrinsic Evidence freely received to determine intent.
Ambiguities
WILL I leave $6,000
to my nephew Ben.
WILL I leave my beach
home in Kemah as follows:
25% to Ben 25% to Jerry
50% to Bartles 25% to James
There are 2 nephews named
Ben.
TRUST
A fiduciary relationship in which one person is the holder of legal title to property subject to an equitable obligation to keep or use the property for the benefit of another.
Requirement to Create Valid Private Trust
1. Expression of Intent 2. At least one beneficiary 3. Property interest in
existence or ascertainable
Delivery
Constructive- gives donee means of obtaining the object (e.g. a Key)
Symbolic- gives donee something symbolic of the actual object (e.g. written instrument)
When manual delivery is difficult or impractical
Resulting Trust Arises by an operation of law
where an express trust FAILS or makes an incomplete disposition.
Outcome? Takes res back to settlor or
settlor’s estate
Power of Appointment
The right (power) to select (appoint) within prescribed limits who shall receive an interest in property or how various interests in property shall be allocated.
Permits one to dispose of property while postponing or giving to another the authority of disposition.
House to H to leave at his death to one or more of 4 children. If he fails to direct, then to A.
“I leave my house to H with power of appointment under his will.”
Oral Intervivos Trusts of Land are Invalid
Restatement Rule: where the owner of an interest
in land transfers it inter vivos to another, but no memorandum properly evidencing intent to create a trust is signed as required by SOF, and the transferee refuses to perform the trust, transferee holds the interest upon the constructive trust for the transferor if the transferee at the time of the transfer was in a confidential relation to the transferor.
Elements to Impose Constructive TRUST
Confidential relationship Deed by Donor
Oral Agreement to Reconvey Real Property
Unjust Enrichment of Transferee
Semi-Secret Trust Will describes a trust but no terms
Result – VOID
e.g. “I leave $50,000 to Ben to dispose as I have instructed.”
Resulting trust
Termination
Claffin Doctrine:
A trust may not be terminated by all of the beneficiaries if it would interfere with a material purpose of the settlor.
Charitable Purposes
A) Relief of Poverty B) Advancement of Education C) Advancement of Religion D) Promotion of Health E) Governmental or Municipal
Purposes F) Other Purposes the Accomplishment
of which is Beneficial to the Community.
The Doctrine of Cy Pres
Applies where the purpose of a trust has becomeIllegalImpossible Permanently impractical of
performance