Preponderance of Evidence Necessary to Rebut Revocation of Lost Will Presumption

In re Estate of Beauregard, 921 N.E.2d 954 (Mass. 2010): The Massachusetts Supreme Judicial Court held that the presumption of revocation that arises when a will last known to be in the possession of the testator and cannot be found after the testator’s death may be rebutted by a preponderance of the evidence. The court agreed with Restatement (Third) of Property (Wills and Donative Transfers) § 4.1 that because there can exist “other plausible explanations for a will’s absence,” requiring a higher burden to rebut the presumption is not appropriate.

Case Law Update provided by Professor Gerry Beyer

Montana Becomes the Third State to Allow Physician Aid in Dying

The following is taken from Kristine S. Knaplund, Montana Becomes Third U.S. State To Allow Physician Aid In Dying, which was written for the February 2010 RPTE eReport, an electronic report issued by the ABA Section of Real Property, Trusts & Estates:

On December 31, 2009, the Montana Supreme Court issued its decision in Baxter v. State of Montana, 2009 MT 449, regarding physician aid in dying (PAD). While the lower court had found a state constitutional right for such aid, a majority of the Supreme Court expressly declined to reach the constitutional issue. Rather, the majority found that the consent of a terminally ill, competent adult to lethal medication would protect the physician from liability for homicide. Montana joins Oregon and Washington in legalizing PAD, but is the only state to do so by judicial decision.

According to Knaplund, the Montana decision leaves unanswered questions about the use of physician assistance in dying, such as whether residents of other states could travel to Montana to receive physician aid in dying, whether the death resulting of the aid would be deemed a suicide, and whether a physician may aid a person who is incapable of administering the medicine.

For more information on the Montana Supreme Court decision, see Kristine S. Knaplund, Montana Becomes Third U.S. State To Allow Physician Aid In Dying, RPTE eReport (Feb. 2010).

Case Law Update provided by Professor Gerry Beyer

Statutory Safe Harbor Not Exclusive

In re Estate of Singer, 920 N.E.2d 943 (N.Y. 2009): New York law provides that deposing the witnesses to a will, the nominated executors, the person who prepared the will, and the persons offering the will for probate does not violate a no contest clause in the will. In in re Estate of Singer, the testator’s son deposed the lawyer who drafted a previous will but then decided not to contest probate and the will was admitted without objection. The executor, the testator’s daughter, then commenced a construction proceeding seeking a declaration that son had violated the no contest clause by deposing a person not included in the statutory safe harbor language. The Surrogate agreed, declared that son had forfeited his gift under the will and the Appellate Division affirmed.

The Court of Appeals, reversed, holding that the statutory list was not exclusive and that son had not violated the no contest clause because he did not file objections to probate.

See In re Estaste of Singer, 920 N.E.2d 943 (N.Y. 2009)

Case Law Update provided by Professor Gerry Beyer

Is a "real" descendant excluded by the will's definition of "descendant"?

Texas Law

Testator had three children, two biological children and one adopted child.  Testator’s will defined “children” by naming only his two biological children and the term “descendants” to include these two children and their descendants.  A later provision further defined “descendants” by indicating that descendants include adopted descendants.  Testator’s predeceased adopted child’s biological child argued that this later provision brought her within the scope the term “descendants.”  Both the trial and appellate courts rejected her claim.

Eight Circuit Upholds Formula Disclaimer

Steve R. Akers (Bessemer Trust) has released his article entitled Estate of Christiansen v. Commissioner, 104 AFTR2d 2009-XXXX (8th Cir. Nov. 13, 2009, corrected Nov. 18, 2009): Eighth Circuit Upholds Formula Disclaimer Over Public Policy Objections (or “Friday the 13th Massacre of IRS Position on Defined Value Clauses”), Nov. 2009.

A synopsis of the article is below:

In a “Friday the 13th” decision, the Eighth Circuit Federal Court of Appeals dealt a crushing blow to the IRS’s position of refusing to recognize “defined value” types of clauses. In Estate of Christiansen, a sole beneficiary disclaimed all of the estate (under a fractional formula) in excess of $6,350,000. The disclaimed assets passed 75% to a charitable lead annuity trust (“CLAT”) and 25% to a foundation. The IRS and the estate agreed to increase the value of the gross estate from $6.5 to $9.6 million. The Tax Court held that the disclaimer as to the 75% that passed to the CLAT did not satisfy all the technical disclaimer requirements (so the estate owed estate tax on that portion of the increase value of the estate). The estate did not appeal that aspect of the case. As to the 25% that passed to the foundation, the technical disclaimer problem did not exist, and the IRS argued that a charitable deduction should not be permitted for the increased value for two reasons. First, any increased amount passing to the charity was contingent on future events in violation of a charitable deduction regulation. Second (and more importantly in the broader planning context), the transfer violates public policy because it reduces the IRS’s incentive to audit estate tax values. The Eighth Circuit rejected both of the IRS’s arguments. Many of the reasons for rejecting the public policy reasons apply generally to certain types of defined value clauses.

Illinois Court Declines to Invalidate Religious Marriage Condition Placed on Inheritance

IllinoisIn re Feinberg, 2009 Ill. Slip Op. 106982 (SC Sept. 24, 2009): The Illinois Supreme Court decided whether to invalidated an inheritance condition based on marrying within the Jewish faith. Below is the case summary for the case provided by the Supreme Court of Illinois:

Max Feinberg, who died in 1986, left a wife, Erla, two adult children, and five grandchildren. He had executed a will that created trusts from which his widow would receive income during her lifetime. At her death, the trust assets were to be combined, and half of these assets were to be held in trust for the benefit of the grandchildren during their lifetimes, provided they had not married out of the Jewish faith, in which case they were to be “deemed deceased” on the date of such a marriage. Shares of such “deceased” grandchildren would revert to the settlor’s two children. Between 1990 and 2001, all of the five grandchildren married.