Deck 50: Wills, Trusts, and Elder Law

Question 1

Cinquemani v. Lazio
New York Supreme Court, Appellate Division, Third Department, 2007.
37 A.D.3d 882, 829 N.Y.S.2d 265.
ROSE, J. [Justice]
* * * *
This action arises out of a disputed agreement between Guiseppe Cinquemani, who is now deceased, plaintiff, who was Cinquemani's wife, and defendants, who are husband and wife. Cinquemani was also the brother of defendant Eleonora Lazio. Defendants immigrated from Italy and established two pizzerias, one in the City of Sherrill, Oneida County, [New York,] and the second in the Village of Sylvan Beach, Oneida County. Later, Cinquemani and plaintiff also immigrated from Italy, moved in with defendants and, ultimately, operated the Sylvan Beach pizzeria for more than 10 years. Following Cinquemani's death in 2003 and defendants'attempt to exclude her from the Sylvan Beach pizzeria, plaintiff commenced this action [in a New York state court] to impose a constructive trust on the business and the building in which it is located. This claim is based on, among other things, an alleged promise by defendant Francesco Lazio (hereinafter Lazio) to convey the pizzeria to Cinquemani and plaintiff. Following a nonjury trial, * * * [the] Court found for plaintiff and awarded her the pizzeria. Defendants appeal [to a state intermediate appellate court] * * *.
The elements of a constructive trust are a confidential or fiduciary relationship, a promise, a transfer in reliance thereon and unjust enrichment. * * * [Emphasis added.]
Here, it is apparent that there was a confidential, family relationship among the parties. Although defendants now minimize the family ties, the evidence showed that Cinquemani was Lazio's brother-in-law and that this relationship led Lazio to solicit Cinquemani to come to the United States and assist him in his pizzeria business. To this end, Lazio helped Cinquemani and plaintiff settle here, and effectively guaranteed the financing for their purchase of a home. Defendants also were godparents to two of plaintiff's children, and the parties attended family occasions such as holidays, baptisms and weddings.
Next, as to the element of promise, plaintiff, one of her sons and a disinterested former employee all testified that Lazio had promised to convey the pizzeria business and its premises after she and Cinquemani * * * made sufficient monthly payments to equate to its value. In response, Lazio asserted that his promise was limited to permitting Cinquemani to keep the profits from the business as long as Cinquemani paid rent of $250 per week and made needed repairs. Based on its assessment of witness credibility, * * * [the] Court rejected Lazio's claim and found that he had made the promise alleged by plaintiff. According due deference to * * * [the] Court's assessment, our review discloses no basis to disturb its finding.
As to the element of transfer, the question here was whether Cinquemani and plaintiff transferred something of value to defendants in reliance on Lazio's promise. The evidence shows that, in order to earn the pizzeria, Cinquemani and plaintiff made the requisite monthly payments to Lazio, made most of the repairs and improvements to the pizzeria premises, and did so while operating the business exclusively and continuously for more than 10 years.
As to the element of unjust enrichment, a person is unjustly enriched when retention of the benefit received would be unjust considering the circumstances of the transfer and the relationship of the parties. Here, the evidence established that Cinquemani and plaintiff met the conditions of Lazio's promise by * * * making all the payments which he had requested. Those payments included $250 per week, which far exceeded the $500 per month rent Lazio had charged another party before entering into this arrangement. * * * The record also supports * * * [the] Court's findings that Cinquemani and plaintiff made payments totaling $178,250, and that this amount exceeded the $40,000 that Lazio paid for the premises in 1985, which was the only proof of the pizzeria's value. Although * * * [the] Court left it to the parties to settle upon the actual value of defendants'investment in the premises and to reconcile that with the payments made, the proof of payment together with the circumstances of the repair, improvement and operation of the premises by Cinquemani and plaintiff supports the court's conclusion that defendants would unfairly benefit if they were allowed to retain the pizzeria. [Emphasis added.]
* * * *
ORDERED that the judgment is affirmed * * *.
1. What are the basic elements of any trust, and what makes up each of those elements in this case
2. Lazio never reported the income or paid the sales taxes from the Sylvan Beach pizzeria and never obtained workers' compensation insurance for its employees. How might these facts have affected the court's decision

Answer 1

1.Basic elements of a trust:
A trust needs to have the following elements in it. The four elements of a trust are:
a. A Designated beneficiary: A designated beneficiary is one who is supposed to get the benefit from the trust. The beneficiary or beneficiaries can be more than one.
b. A Designated trustee : A trustee is one who is appointed to look after the affairs of the trust and he will be care taker of all the administrative and financial matters of the trust.
c. Sufficient fund for the trust : The trust is supposed to have sufficient funds to function and offer the designated advantages to the beneficiaries. The trust's money needs to deposited in a bank or put in the safe custody for use.
d. Delivery of the title by guarantor to the trustee: In order the trust to be useful the grantor or the owner needs to write an agreement offering the full and fair title to the trustee to be a functional one.
In this case the four elements are connected to the case in the following manner:
a. A designated beneficiary: In this case Cinquemani and his brother are the beneficiaries of the trust.
b. Designated Trustee: The designated trustee in this case is Mr. L, the brother of Mr. C.
c. Sufficient Fund for the trust: The trust has a huge amount of funds for the trust amounting up to $178,200.
d. The Delivery of the title to the trustee: In order to create the trust the title is passed onto Mr. L, being the sole trustee of the trust.
2.The fact that Mr. L has never reported the income properly, or reported the payments made to the workers properly would not have altered the decision of the court because they already reported the total expenditure from the trust.

Question 2

QUESTION WITH SAMPLE ANSWER: Revocation of Wills.
While single, James made out a will naming his mother, Carol, as sole beneficiary. Later, James married Lisa.
(a) If James died while married to Lisa without changing his will, would the estate go to his mother,Carol Explain.
(b) Assume that James made out a new will on his marriage to Lisa, leaving his entire estate to Lisa. Later, he divorced Lisa and married Mandis, but he did not change his will. Discuss the rights of Lisa and Mandis to James's estate after his death.
(c) Assume that James divorced Lisa, married Mandis, and changed his will, leaving his estate to Mandis. Later, a daughter, Claire, was born. James died without having included Claire in his will. Discuss fully whether Claire has any rights in the estate.

Answer 2

a). Is the Will Valid :
State laws vary regarding the matter of written wills executed before marriage. Additionally, if the marriage produces an offspring, it will affect the validity of a will.
The Uniform Probate Code states that a marriage that occurs subsequent to the writing of a will does not revoke a will. If the testator dies intestate, then the spouse is entitled to a share in the estate according to the formula set by state law, with the remainder passing under the will.
Hence, if the will is revoked by marriage, Lisa will be the sole beneficiary. If the marriage does not revoke the will, Lisa may receive one-half of the estate under the laws of intestacy with the balance going to Carol.
b). Second Marriage, Unchanged Will:
A will made and executed during a prior marriage does not become invalid as a result of a divorce. State law determines that portion of the will that disposes of property to the former spouse if the divorce settlement includes a property settlement.
Hence, if Lisa received a property settlement in her divorce settlement, James' will would be revoked and Mandis would recover the entire estate by the laws of intestacy.
c). Wills and Children:
If James died without including his child in his will, the law will allow the child to inherit as though James had died intestate. Children are included in an estate inheritance unless specifically excluded.
Hence, Claire would receive one-half of the estate in accordance with the state laws.

Question 3

In June 2007, Bernard Ramish set up a $48,000 trust fund through West Plains Credit Union to provide tuition for his nephew, Nathan Covacek, to attend Tri-State Polytechnic Institute. The trust was established under RamishÕs control and went into effect that August. In December, Ramish suffered a brain aneurysm that caused frequent, severe headaches but no other symptoms. Shortly thereafter, Ramish met with an attorney to formalize in writing that he wanted no artificial life-support systems to be used should he suffer a serious illness. Ramish designated his cousin, Lizzie Johansen, to act on his behalf, including choosing his medical treatment, should he become incapacitated. In August 2009, Ramish developed heatstroke on the golf course at La Prima Country Club. After recuperating at the clubhouse, Ramish quickly wrote his will on the back of a wine list. It stated, "My last will and testament: Upon my death, I give all of my personal property to my friend Steve Eshom and my home to Lizzie Johansen." He signed the will at the bottom in the presence of five men in the La Prima clubhouse, and all five men signed as witnesses. A week later, Ramish suffered a second aneurysm and died in his sleep. He was survived by his mother, Dorris Ramish; his son-in-law, Bruce Lupin; and his granddaughter, Tori Lupin. Using the information presented in the chapter, answer the following questions.
What would the order of inheritance have been if Ramish had died intestate

Answer 3

Intestacy inheritance
The inheritance pertaining to ancestor property is subject to law of distribution and decent in cases where the deceased has not left any valid will before his death. Thus under such situation the spouse and all the legal heirs gets the possession of the personal property of the deceased. However as per the distribution and decent marital rights the surviving spouse is the sole care taker of the estate.
In this case, Since BR was suffering from brain aneurysms that result in severe headache. Thus due to his serious health problem if he died without leaving a valid will then his personal property is being treated as intestate and is distributed as per intestate inheritance law. Hence it is ascertained that as per the law granddaughter of BR is entitle to have the possession of the estate.

Question 4

Intent Requirement Merlin Winters had three sons. Merlin and his youngest son, Abraham, had a falling out in 1994 and stopped speaking to each other. Merlin made a formal will in 1996, leaving all of his property to the two older sons and explicitly excluding Abraham. Merlin's health began to deteriorate, and by 1997, he was under the full-time care of a nurse, Julia. In 1998, he made a new will expressly revoking the 1996 will and leaving all of his property to Julia. On Merlin's death, the two older sons contest the 1998 will, claiming that Julia exercised undue influence over their father. Abraham claims that both wills are invalid because the first will was revoked by the second will, and the second will is invalid on the ground of undue influence. Is Abraham's contention correct Explain.

Question 5

In June 2007, Bernard Ramish set up a $48,000 trust fund through West Plains Credit Union to provide tuition for his nephew, Nathan Covacek, to attend Tri-State Polytechnic Institute. The trust was established under RamishÕs control and went into effect that August. In December, Ramish suffered a brain aneurysm that caused frequent, severe headaches but no other symptoms. Shortly thereafter, Ramish met with an attorney to formalize in writing that he wanted no artificial life-support systems to be used should he suffer a serious illness. Ramish designated his cousin, Lizzie Johansen, to act on his behalf, including choosing his medical treatment, should he become incapacitated. In August 2009, Ramish developed heatstroke on the golf course at La Prima Country Club. After recuperating at the clubhouse, Ramish quickly wrote his will on the back of a wine list. It stated, "My last will and testament: Upon my death, I give all of my personal property to my friend Steve Eshom and my home to Lizzie Johansen." He signed the will at the bottom in the presence of five men in the La Prima clubhouse, and all five men signed as witnesses. A week later, Ramish suffered a second aneurysm and died in his sleep. He was survived by his mother, Dorris Ramish; his son-in-law, Bruce Lupin; and his granddaughter, Tori Lupin. Using the information presented in the chapter, answer the following questions.
Was Johansen granted a durable power of attorney or a health-care power of attorney for Ramish Explain. Had Ramish created a living will

Question 6

Rohan, an eighty-three-year-old invalid, employs a nurse, Sarah, to care for him. Prior to Sarah's employment, Rohan executed a will leaving his entire estate to his only living relative-his great-grandson, Leon. Sarah convinces Rohan that Leon is dead and gets Rohan to change his will, naming Sarah as his sole beneficiary. After Rohan's death, Leon appears and contests the will. Discuss the probable success of Leon's action.

Question 7

Intestacy Laws In January 1993, three and a half years after Lauren and Warren Woodward were married, they were informed that Warren had leukemia. At the time, the couple had no children, and the doctors cold the Woodwards that the leukemia treatment might leave Mr. Woodward sterile. The couple arranged for Mr. Woodward's sperm to be collected and placed in a sperm bank for later use. In October 1993, Warren Woodward died. Two years later, Lauren Woodward gave birth to twin girls who had been conceived through artificial insemination using Mr. Woodward's sperm. The following year, Mrs. Woodward applied for Social Security survivor benefits for the two children. The Social Security Administration (SSA) rejected her application, on the ground that she had not established that the twins were the husband's children within the meaning of the Social Security Act of 1935. Mrs. Woodward then filed a paternity action in Massachusetts, and the probate court determined that Warren Woodward was the twins' father. Mrs. Woodward resubmitted her application to the SSA but was again refused survivor benefits for the twins. She then filed an action in a federal district court to determine the inheritance rights, under Massachusetts's intestacy law, of children conceived from the sperm of a deceased individual and his surviving spouse. How should the court resolve this case Should children conceived after a parent's death (by means of artificial insemination or in vitro fertilization) still inherit under intestate succession laws Why or why not [ Woodward v. Commissioner of Social Security , 435 Mass. 536, 760 N.E.2d 257 (2002)]

Question 8

Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.
United States District Court, Southern District of New York, 2007. 486 F.Supp.2d 309.
• Background and Facts The actress Marilyn Monroe, a New York resident, died in California on August 5, 1962. Her will gave her estate's residuary assets to Lee Strasberg and two other beneficiaries. Lee died in 1982. On the death of Aaron Frosch (the executor of Monroe's estate), Lee's widow, Anna, was appointed administrator. In 2001, the residuary assets were transferred to Marilyn Monroe, LLC (MMLLC), which Anna formed to manage those assets. During Monroe's life, photographer Sam Shaw took photos of her. After his death, the photos descended to the Shaw Family Archives (SFA). With Bradford Licensing Associates, SFA maintained a Web site through which they licensed Monroe's picture, image, and likeness for commercial use. In 2006, T-shirts that bore her picture and SFA's inscription on the label were offered for sale in Indiana. MMLLC asserted that under Indiana's Right of Publicity Act (which creates a right of publicity that survives for one hundred years after a person's death) it owned a right of publicity bequeathed by the residuary clause of Monroe's will and that SFA had violated this right. SFA and others filed a suit in a federal district court against MMLLC and CMG Worldwide, Inc., contending that MMLLC did not own such a right. Both parties filed motions for summary judgment.
McMAHON, District Judge.
* * * *
Descendible [inheritable] postmortem [after death] publicity rights were not recognized, in New York, California, or Indiana at the time of Ms. Monroe's death in 1962. To this day, New York law does not recognize any common law right of publicity and limits its statutory publicity rights to living persons. California recognized descendible publicity rights when it passed its postmortem right of publicity statute in 1984, 22 years after Ms. Monroe's death. Prior to that time, a common law right of publicity existed, but it was not freely transferable or descendible. Indiana first recognized a descendible, postmortem right of publicity in 1994, when it passed the Indiana Right of Publicity Act. Prior to that time, rights of publicity were inalienable [not able to be transferred] in Indiana, since they could only be vindicated through a personal tort action for invasion of privacy. [Emphasis added.]
Thus, at the time of her death in 1962 Ms. Monroe did not have any postmortem right of publicity under the law of any relevant state. As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law. [Emphasis added.]
Nevertheless, MMLLC argues that her will should be construed as devising postmortem publicity rights that were later conferred on Ms. Monroe by statute. Such a construction is untenable [not reasonable].
Indiana follows the majority rule that the law of the domicile of the testator at his or her death applies to all questions of a will's construction. * * * [N]either New York nor California-the only two states in which Ms. Monroe could conceivably have been domiciled-permitted a testator to dispose by will of property she does not own at the time of her death.
* * * *
[MMLLC cited references to "after-acquired property" in New York cases to support its argument.] * * * A will is deemed to pass all of the property the testator owns at the time of his death, rather than only the property owned at the time when the will was executed. Thus, when
* * * [New York] court[s] * * * refer to "after-acquired" property, the term signifies property acquired after the execution of the will and before the testator's death-not property acquired after the testator's death. [No case or statute] stands for the proposition that any intent on the part of the testator can overcome his testamentary incapacity to devise property he does not own at the time of his death. [Emphasis added.]
California law does not differ from New York's.* * *
* * * *
* * * [E]ven if a postmortem right of publicity in Marilyn Monroe's persona could have been created after her death, [none] of the statutes that arguably bestowed that right allows for it to be transferred through the will of a "personality" who, like Ms. Monroe, was already deceased at the time of the statute's enactment.
• Decision and Remedy The court issued a summary judgment in SFA's favor, holding that MMLLC had not become the owner of a right of publicity in Marilyn Monroe's name, likeness, and persona through her will. Monroe did not have the testamentary capacity to bequeath such a right because she did not own it-such rights did not exist-at the time of her death.
• The E-Commerce Dimension Did SFA and Bradford's online offer of licenses for the commercial use of Monroe's image have any effect on the court's decision in this case Why or why not
• The Legal Environment Dimension How might the court have ruled if Monroe had phrased her residuary clause to clearly state an intent to devise property she did not then own (Hint: Can people-during or after their lives-transfer property that they do not own )

Question 9

Wills In 1944, Benjamin Feinberg bought a plot in Beth Israel Cemetery in Plattsburgh, New York. A mausoleum was built on the plot to contain six crypts. In 1954, Feinberg's spouse died and was interred in one of the crypts. Feinberg, his only son, one of his two daughters, and the daughter's son, Julian Bergman, began using the mausoleum regularly as a place of prayer and meditation. When Feinberg died, he was interred in the mausoleum. His two daughters were interred in two of the remaining crypts on their deaths. Feinberg's son died in 2001 and was interred in the fifth crypt. His widow, Laurie, then changed the locks on the mausoleum and refused access to Julian, who filed a suit in a New York state court against her to obtain a key. Feinberg and all of his children died testate, but none of them made a specific bequest of their interest in the plot to anyone. Each person's will included a residuary clause, however. Who owns the plot, who has access to it, and why [Bergman v. Feinberg , 6 A.D.3d 1031, 776 N.Y.S.2d 611 (3 Dept. 2004)]

Question 10

Go to academic.cengage.com/blaw/clarkson , the Web site that accompanies this text. Select "Chapter 50" and click on "Internet Exercises." There you will find the following Internet research exercises that you can perform to learn more about the topics covered in this chapter.
Legal Perspective
Wills and Trusts

Question 11

CASE PROBLEM WITH SAMPLE ANSWER
Alma Zeigler, a resident of Georgia, died in June 2001. Zeigler's will named as executor her granddaughter, Stacey Hatchett. Hatchett, who was teaching and attending graduate school in Illinois, filed a petition to probate the will in a Georgia state court, which confirmed her as executor in January 2002. The estate's main asset was a brick, three-bedroom house in Savannah. Hatchett sold the house for $65,000, without obtaining an appraisal, and deposited the proceeds in her personal account. Meanwhile, Zeigler's adopted son took the furnishings from the house and placed them in storage. By August 2003, Hatchett had not inventoried these items, did not know their location, and knew only that the son lived "somewhere in Florida." Also unaccounted for was a diamond ring that had been on Zeigler's finger at the time of her death and a van that Zeigler had owned. Rita Williams, to whom the will devised certain real property, filed a petition with the court, asking that Hatchett, who had not been in Georgia since filing the petition to probate the will, be removed as executor. What are the duties of an executor, or personal representative Did Hatchett violate these duties Explain. [ In re Estate of Zeigler, 273 Ga.App. 269, 614 S.E.2d 799 (2005)]

Question 12

For updated links to resources available on the Web, as well as a variety of other materials, visit this text's Web site at
academic.cengage.com/blaw/clarkson
The SeniorLaw Web site offers information on a variety of topics, including estate planning and trusts. The URL for this site is
www.seniorlaw.com
You can find the Uniform Probate Code, as well as links to various state probate statutes, at Cornell University's Legal Information Institute. Go to
www.law.cornell.edu/uniform/probate.html
A number of tools, including wills and trusts, that can be used in estate planning are described by the National Association of Financial and Estate Planning on its Web site at
www.nafep.com

Question 13

CASE PROBLEM WITH SAMPLE ANSWER: Wills.
James Lillard's first wife had a child whom James adopted when he married that child's mother, fames fathered other children with her until they divorced in the early 1970s. In 1975, James married his second wife. During this marriage, each spouse's biological children remained the other's stepchildren because neither spouse adopted the other's children. James's second wife died in 2002, and he was diagnosed with terminal cancer in January 2004. In February, he executed a will that divided his property equally among all of his children and stepchildren. By October, James was living with his children, who managed his finances and administered his prescribed drugs, which impaired him mentally and physically. A hospice worker noted that on October 5 James had difficulty completing sentences and was forgetful. A visitor two days later described him as "morphined up." On this same day, he tore his first will in half and executed a new will that left most of his property to his children. James died on October 19. His children submitted the second will to a Georgia state court for probate. His stepchildren objected, alleging, among other things, that at the time of its execution, James lacked testamentary capacity. His children responded that the first will had been validly revoked. Which will should be declared valid Why [ Lillard v. Owens, 281 Ga. 619 641 S.E.2d 511 (2007)]

Question 14

Wills and Intestacy Laws Benjamin is a widower who has two married children, Edward and Patricia. Patricia has two children, Perry and Paul. Edward has no children. Benjamin dies, and his typewritten will leaves all of his property equally to his children, Edward and Patricia, and provides that should a child predecease him, the grandchildren arc to take per stirpes. The will was witnessed by Patricia and by Benjamin's lawyer and was signed by Benjamin in their presence. Patricia has predeceased Benjamin. Edward claims the will is invalid.
(a) Discuss whether the will is valid.
(b) Discuss the distribution of Benjamin's estate if the will is invalid.
(c) Discuss the distribution of Benjamin's estate if the will is valid.

Question 15

A QUESTION OF ETHICS: Wills.
Vickie Lynn Smith, an actress and model also known as Anna Nicole Smith, met J. Howard Marshall II in 1991. During their courtship, J. Howard lavished gifts and large sums of money on Anna Nicole, and they married on June 27, 1994. J. Howard died on August 4, 1995. According to Anna Nicole, J. Howard intended to provide for her financial security through a trust but under the terms of his will, all of his assets were transferred to a trust for the benefit of E. Pierce Marshall, one of J. Howard's sons. While J. Howard's estate was subject to pro bate proceedings in a Texas state court, Anna Nicole filed for bankruptcy in a federal bankruptcy court. Pierce filed a claim in the bankruptcy proceeding, alleging that Anna Nicole had defamed him when her lawyers told the media that Pierce had engaged in forgery and fraud to gain control of his father's assets. Anna Nicole filed a counterclaim, alleging that Pierce prevented the transfer of his father's assets to a trust for her by, among other things, imprisoning J. Howard against his wishes, surrounding him with security guards to prevent contact with her, and transferring property against his wishes. [ Marshall v. Marshall, 547 U.S. 293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006)]
(a) What is the purpose underlying the requirements for a valid will Which of these requirements might be at issue in this case How should it apply here Why
(b) State courts generally have jurisdiction over the probate of a will and the administration of an estate. Does the Texas state court thus have the sole authority to adjudicate all of the claims in this case Why or why not
(c) How should Pierce's claim against Anna Nicole and her counterclaim be resolved
(d) Anna Nicole executed her will in 2001. The beneficiary-Daniel, her son, who was not J. Howard's child-died in 2006, shortly after Anna Nicole gave birth to a daughter, Dannielynn. In 2007, before executing a new will, Anna Nicole died. What happens if a will's beneficiary dies before the testator What happens if a child is born after a will is executed

Question 16

In June 2007, Bernard Ramish set up a $48,000 trust fund through West Plains Credit Union to provide tuition for his nephew, Nathan Covacek, to attend Tri-State Polytechnic Institute. The trust was established under RamishÕs control and went into effect that August. In December, Ramish suffered a brain aneurysm that caused frequent, severe headaches but no other symptoms. Shortly thereafter, Ramish met with an attorney to formalize in writing that he wanted no artificial life-support systems to be used should he suffer a serious illness. Ramish designated his cousin, Lizzie Johansen, to act on his behalf, including choosing his medical treatment, should he become incapacitated. In August 2009, Ramish developed heatstroke on the golf course at La Prima Country Club. After recuperating at the clubhouse, Ramish quickly wrote his will on the back of a wine list. It stated, "My last will and testament: Upon my death, I give all of my personal property to my friend Steve Eshom and my home to Lizzie Johansen." He signed the will at the bottom in the presence of five men in the La Prima clubhouse, and all five men signed as witnesses. A week later, Ramish suffered a second aneurysm and died in his sleep. He was survived by his mother, Dorris Ramish; his son-in-law, Bruce Lupin; and his granddaughter, Tori Lupin. Using the information presented in the chapter, answer the following questions.
What type of trust did Ramish create for the benefit of Covacek Was it revocable or irrevocable

Question 17

In re Estate of Pallister
Supreme Court of South Carolina, 2005. 363 S.C. 437, 611 S.E.2d 250.
www.judicial.state.sc.us/opinions/indexSCPub.cfm a
• Background and Facts Mary Pallister grew up in South Carolina but spent most of the last two decades of her life in New Mexico, where she executed two wills. The beneficiaries of both wills included her husband's sister, Ruth Diem, and Diem's daughter, Ann Patton. Pallister had been close friends with Diem for more than fifty years and maintained a similar relationship with Patton. After Pallister's husband died, she moved to Methodist Manor in Florence, South Carolina, near the family of her brother's son, James Reames. In 1999, Pallister executed a new will, expressly revoking the others. Again, the beneficiaries were Diem and Patton. The will also stated that James was to inherit the estate if Diem and Patton died before Pallister. Otherwise, he would inherit nothing. In March 2001, Pallister was admitted to a hospital and died the next month, leaving an estate with a value of more than $1.4 million. The original copy of the 1999 will could not be found. Diem and Patton petitioned a South Carolina probate court to accept a copy of the original. James and others opposed the petition, arguing that because the original could not be found, Pallister must have destroyed it with the intent to revoke it. b A jury issued a verdict in favor of the petitioners (Diem and Patton). James (and others) appealed. The South Carolina Supreme Court agreed to review the case.
a. In the right-hand column, click on "2005" and then on "March." In the result, scroll to the name of the case and click on the appropriate link to access the opinion. The South Carolina Judicial Department maintains this Web site.
[b. As explained later in this chapter, if Pallister died without a will, her estate would be distributed according to the applicable intestacy laws. In that circumstance, James would inherit part of the estate.]
Justice BURNETT.
* * * *
* * * The person asserting that an original will was, in fact, valid but mistakenly lost or destroyed by another, bears the burden of presenting clear and convincing evidence to rebut the presumption the testator destroyed the will with an intent to revoke it. [Emphasis added.]
* * * *
It is undisputed the 1999 will was valid upon execution. The attorney testified she delivered the original will to Testatrix [Pallister] and James testified he saw it in her apartment two to three months before her death. The * * * beneficiaries of the will were the same persons Testatrix had named in her wills since 1983-Diem and Patton. The record contains no evidence Testatrix expressed any desire to change or revoke her will in order not to pass assets to Diem and Patton; nor is there any evidence Testatrix grew unhappy or displeased with them in any way. The record contains clear and convincing evidence upon which the jury may have relied in determining the original will existed at Testatrix's death.
Testatrix previously had kept her wills in a safe deposit box. * * * Testatrix usually was an organized, "by the books" person who regularly maintained files containing current and past financial and investment documents. Some of those documents were transported in a bag to and from the hospital on several occasions in the month preceding her death. Some of her belongings were moved from an independent living unit to an assisted living unit at the Methodist Manor in the last weeks of her life. Diem and Patton found Testatrix's apartment in an unusually disorganized and unkempt state after her death.
In addition, Testatrix regularly had consulted professionals-lawyers, accountants, and stockbrokers- throughout her life when making important decisions and preparing significant documents. The jury may have reasoned that if Testatrix had wanted to revoke her 1999 will, it is not likely she would have torn it up or discarded it. Instead, it is far more likely she would have consulted the lawyer who had drafted the will to make other arrangements. The record contains clear and convincing evidence upon which the jury may have relied in determining the original 1999 will was misplaced or lost during Testatrix's final illness and frequent moves.
Moreover, James knew about the will and admitted he was displeased with its terms. He telephoned Testatrix's attorney to complain about it and accused her of convincing Testatrix to leave everything to Diem and Patton. He had unfettered [unrestricted] access to Testatrix's apartment, knew where she kept financial and investment records, and by his own testimony spent days on end there as Testatrix's health worsened. He had access to Testatrix's apartment for eleven days while she was hospitalized shortly before her death.
The mere fact James, who would benefit financially were the will revoked, had access to Testatrix's missing will is not, standing alone, sufficient to rebut the presumption Testatrix herself revoked it by destroying it. However, in addition to the evidence of Testatrix's practice of keeping careful records and consulting professionals, the record reveals more than motive to destroy the will and opportunity to do so by a third party.
* * * James transferred about $713,000 in assets from Decedent to himself on the day she re-entered the hospital-three days before her death-after obtaining her signature on necessary bank and brokerage forms.
James testified several people were in the room during a half-hour signature session. [A Methodist Manor employee who was a] notary public testified only he, James, and Testatrix were present during a five-minute period. When questioned by Diem and Patton about the transfers and the location of Testatrix's original 1999 will after Testatrix's death, James told them he had never seen the will. The record contains clear and convincing evidence upon which the jury may have relied in determining a third party destroyed the will without Testatrix's consent or knowledge.
• Decision and Remedy The South Carolina Supreme Court affirmed the decision of the lower court, which had accepted for probate a copy of Pallister's will despite the loss of the original. The state supreme court ruled that "clear and convincing" evidence supported the conclusion that the original existed at the time of Pallister's death and had been lost after her death or destroyed by a third party without her knowledge or consent.
• What If the Facts Were Different Suppose that shortly before Pallister's death, she had asked James to tear up her will, and he had done it. Would the result have been different Explain.
• The E-Commerce Dimension How might the availability of a secure online repository for a person's will affect a challenge to the will

Question 18

Go to academic.cengage.com/blaw/clarkson , the Web site that accompanies this text. Select "Chapter 50" and click on "Internet Exercises." There you will find the following Internet research exercises that you can perform to learn more about the topics covered in this chapter.
Management Perspective
Social Security

Question 19

Specific Bequests Gary Mendel drew up a will in which he left his favorite car, a 1966 red Ferrari, to his daughter, Roberta. A year prior to his death, Mendel soldthe 1966 Ferrari and purchased a 1969 Ferrari. Discuss whether Roberta will inherit the 1969 Ferrari under the terms of her father's will.

Question 20

In June 2007, Bernard Ramish set up a $48,000 trust fund through West Plains Credit Union to provide tuition for his nephew, Nathan Covacek, to attend Tri-State Polytechnic Institute. The trust was established under RamishÕs control and went into effect that August. In December, Ramish suffered a brain aneurysm that caused frequent, severe headaches but no other symptoms. Shortly thereafter, Ramish met with an attorney to formalize in writing that he wanted no artificial life-support systems to be used should he suffer a serious illness. Ramish designated his cousin, Lizzie Johansen, to act on his behalf, including choosing his medical treatment, should he become incapacitated. In August 2009, Ramish developed heatstroke on the golf course at La Prima Country Club. After recuperating at the clubhouse, Ramish quickly wrote his will on the back of a wine list. It stated, "My last will and testament: Upon my death, I give all of my personal property to my friend Steve Eshom and my home to Lizzie Johansen." He signed the will at the bottom in the presence of five men in the La Prima clubhouse, and all five men signed as witnesses. A week later, Ramish suffered a second aneurysm and died in his sleep. He was survived by his mother, Dorris Ramish; his son-in-law, Bruce Lupin; and his granddaughter, Tori Lupin. Using the information presented in the chapter, answer the following questions.
Would Ramish's testament on the back of the wine list meet the requirements for a valid will