Wills & Probate

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  1. Kovell v. U.S.
    • Established:
    • - when an attorney hires an expert, that expert works for the attorney, unless the expert is an expert witness or his product will be used as evidence at trial, the work of the expert is considered attorney work product and falls under attorney-client privilege.
  2. Shapira v. Union National Bank
    o   A gift conditioned upon the beneficiary marrying within a particular religious class or faith is reasonable.

    • o   Ct says that partial restraint on inheritance(must marry a jewish girl with 2
    • jewish parents) is constitutional and reasonable and is not against public
    • policy since it is not a complete restraint on marriage.  They say that Shapira has the right to devise his wealth on this condition.
  3. Hodel v. Irving
    • The statute ordering the escheat of
    • fractional interests in real property which had been bequeathed to members of the Oglala Sioux tribe was an unconstitutional taking which without just compensation violates the fifth amendment.
  4. Shaw Family Archives v. MMLLC
    Post-mortem right of Publicity

    - The will speaks at death, thus the will can only devise the property of the testator that the testator owned at the time of death.

    - Descendable rights (if recognized) go by Intestate Succession… if not recognized, the right is extinguished at death.
  5. Simpson v. Calivas – pg 52
    Duty to 3rd Party Beneficiary: 

    A duty runs from a drafting attorney to an intended beneficiary, and as such, an identified beneficiary has third party beneficiary status.
  6. Case of A. v. B.
    • Rules of Professional Responsibility require that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding
    • the representation.

    (in this case, the atty could disclose to wife that the husband had a child by another woman but could not disclose identity of child/mother)
  7. Lankford v. Wright (NC Law)
    • Elements of
    • Equitable Adoption:

    • (1) an express or implied
    • agreement to adopt the child

    (2) reliance on agreement

    • (3) performance by the natural
    • parents of the child in giving up custody

    (4) performance by the child in living in the home of the foster parents and acting as their child

    • (5) partial performance by the
    • foster parents in taking the child into their home and treating the child as their own, and

    (6) the intestacy of the foster parents.
  8. Hall v. Vallandingham
    Old Case law that states:   the adopted child’s right to inherit from the natural parent is extinguished upon adoption, it also abrogated the right to inherit through the natural parent by way of representation.  

    **this has changed since then to allow for adopted children to inherit from natural parents if adopted by a step parent***
  9. Minary v. Citizens Fidelity Bank & Trust
    • - An adult person may be adopted in the same manner as provided by law for the
    • adoption of a child and with the same legal effect.
    • - Adopting an adult for the purpose of bringing that person within the provisions of a
    • pre-existing testamentary instrument, when that person was clearly not intended
    • to be covered by the instrument, should not be permitted.
  10. O’Neal v. Wilkes
    Guardian consenting to adoption of child by 3rd party

    • - The obligation to care and provide for appellant undertaken by Campbell, and later
    • Page, was not a legal obligation, but rather a familial obligation resulting in a custodial relationship that is characterized as something less than that of a legal custodian. This relationship carried no authority to contract for appellant’s adoption.

    • - A legal custodian does not have the right to consent to the adoption of a child,
    • as this right is specifically retained by a child’s parent or guardian.

    - NOTE: UNDER the new UPC, a parent-child relationship exists
  11. Posthumous Children
    • - A child born within 10 lunar months (280) days after the death of her husband
    • establishes a rebuttable presumption that the child is the child of the
    • deceased husband
  12. Woodward v. Commission of Social
    Security (District Ct of Maryland)– pg 118
    Before a Posthumous child may receive inheritance rights under statute,

    • The surviving parent or child’s legal representative must demonstrate a genetic
    • relationship between the child and decedent

    • The decedent must have affirmatively consented to:
    • § Posthumous conception &

    § the Support of any resulting child
  13. In re Martin B.
    - Where a government instrument is silent, children born of this new biotechnology with the consent of their parent is entitled to the same rights, for all purposes, as those of a natural child.
  14. Astrue v. Capato
    - Children were not eligible for survivor’s social security benefit since they were not entitled to inherit from decedent under Florida intestacy law
  15. Phillips v. Ledford (early NC case)
    - For the purposes of Intestate Succession in NC, the statute provides that the father MUST legitimize the daughter and since he did not… her claim was dismissed

    • ***(this was later amended to add: A person who died prior to or within one year after
    • the birth of the child and who can be established to have been the father of
    • the child by DNA testing.)***
  16. Stepchildren - when do they "take" under the UPC?
    If NO Spouse, no Decedent, no Parent, no Brother or Sister and no grandparents (i.e.: there is no one in the first two parentelic lines… then:

    • o  UNDER THE UPC step children take the
    • estate (§2-103(b))
  17. Halfbloods under the UPC
    A relative of half-blood is treated the same as a relative of whole-blood.
  18. Newlin v. Gill
    • -Heir was in the 3rd parentelic line and considered a laughing heir.  
    • - NC = NO intestate succession outside of the first & second parentelic lines. (if there is an hier within 5 generations... that is the heir, but will open past 5 generations w/in 2 parentelic lines to find an heir)
  19. Advancements - Iventory
    If a party is asked to make a full accounting of their advancement but refuses to do so, they are presumed to have received their full share and they receive nothing additional!
  20. Janus v. Tarasewicz
    • The life insurance policy stated that If Theresa survives Stanley.  The record clearly established that the treating physicians’ diagnoses of death with respect to Stanley and Theresa Janus were made in accordance with the usual and customary standards of medical practice. It was not necessary to
    • determine by how long Theresa survived Stanley, only that she survived Stanley.  
    • ***NC has a 120 hour survivorship rule (equivalent to 5 days)
  21. NC Survivorship Rule
    • When governing instrument requires a person to “survive” another person…
    • they must survive that person by 120 hours (equivalent to approximately 5 days)
    • or that person will be presumed to have predeceased the decedent.
Card Set:
Wills & Probate
2013-12-10 03:00:01
Wills Probate

Wills & Probate (UPC & NC Law) - 1st Semester
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