Robert Mennell - Wills and Trusts in a Nutshell

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Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

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Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

WILLS AND TRUSTS

IN A NUTSHELL

FIFTH EDITION

ROBERT L. MENNELL

Professor of Law Emeritus
(19342013)

SHERRI L. BURR

Dickason Chair and Regents Professor of Law
University of New Mexico

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ISBN: 978-1-63460-487-1

Sherri Burr dedicates the Fifth Edition of Wills and Trusts in a Nutshell to her co-author Robert Mennell who passed away in 2013. Bob graduated from Harvard Law School and earned an LL.M in taxation from William Mitchell College. It was a pleasure to work with him because of his sense of humor and attention to detail. This book continues as one of his legacies.

PREFACE

This book is designed to help law students master Wills and Trusts law and pass examination questions. It does not teach how to draft wills, trusts, or other documents. Instead, it provides an overview of basic legal knowledge.

Some subjects, such as nuncupative (oral) wills and exoneration of liens, are barely mentioned while others, like intestate succession, anti-lapse statutes, disclaimers, and pretermitted heirs, are given extensive coverage because of the difficulties they present when interacting with other doctrines.

A few references are made to cases found in the common casebooks, but footnotes do not appear. The book is designed to be read easily so that the student can tie together classroom and casebook discussions.

Welcome to the law of sex, greed, and family animosity. Wills and trust cases can often be as entertaining as they are educational.

Sherri L. Burr

Albuquerque, New Mexico
February, 2017

My co-author Bob Mennell prided himself on creating the first and second edition of this book with one footnote, which he considered sufficient. This tradition continues in this edition.

ACKNOWLEDGMENTS

Sherri Burr expresses gratitude to her research assistant Lundyn Garrett, and to proofreader Cheryl Burbank.

OUTLINE

iii. Decedent Leaves Children from a
Prior Relationship

a. Expanding the Definition of
Legitimacy

b. Statutory Trends Permitting
Non-Marital Children to Inherit

d. Disinheritance of Non-Marital Children
by Will

New York Estates, Powers & Trusts Law
32.1

b. Exceptions to the Written
Requirement

C. Revocation by Writing: Express and
Implied

Aliens, Animals, Charities, Corporations
and Felons

Conditional Bequests, Equitable Charges
and Elections

Massachusetts Business Trusts and
Illinois Land Trusts

iv. Express Consent of All
Beneficiaries

Trust Administration
Problems

c. Interest, Bond Premium and
Discount

Changes Made by the Current Principal
and Income Act

B. Probate Court Jurisdiction over
Incapacitated Persons

Powers of Attorney Can Avoid Probate
Court Jurisdiction

Jurisdictional Conflicts over
Guardianship

TABLE OF CASES

References are to Pages

Armstrong v. Terry L. Armstrong, 37

Astor, In re, 338

Astor, In re Estate of, 338

Astrue v. Capato, 29

Blount v. Dean, 36

Brainard v. Commissioner, 203

Breeden v. Stone, 86

Butler, Estate of, 47

Clark v. Campbell, 221

Crosby v. Alton Ochsner Medical Foundation, 115

Crowell v. Tuttle, 76

Dicksion, In re Estate of, 30

Doherty v. Traxler, 36

Dougherty v. Cole, 38

Drye v. United States, 35

Esper v. Gray, 14

Evans v. Abney, 234

Farkas v. Williams, 254

Farmers Loan & Trust Co. v. Winthrop, 204

Fleming v. Morrison, 88

Gifford v. Dyer, 94

Hales Will, In re, 73

Hall v. Vallandingham, 31

Hand, Estate of, 79, 81, 82

Harrison v. G. & K. Inv. Co., 36

Harvard College v. Amory, 277

Hecht v. Superior Court, 29

Henry v. Toney, 107

Jackson v. Phillips, 233

Jane E.P., In re the Guardianship of, 341

Janus v. Tarasewicz, 19

Jones v. Stubbs, 14

Kaufmans Estate, In re, 115

Kimmels Estate, In re, 84, 85

Kissinger, In re Estate of, 38

Kuralt, In re Estate of, 78

Latham v. Father Divine, 94

Magruder v. Drury, 266, 271

Mahoneys Estate, In re, 37, 243

Marsman v. Nasca, 249, 296

Maud v. Catherwood, 23

Minary v. Citizens Fidelity Bank & Trust Co., 33

Molera v. Cooper, 205

Newman v. Dore, 46

ONeal v. Wilkes, 32

Obergefell v. Hodges, 41

Olschansky, Matter of, 85

Osman v. Osman, 38

Parisi, Estate of, 135

Patricia S., In re Adoption of, 34

Presley v. Hanks, 28

Romero, Estate of, 86

Rothkos Estate, Matter of, 315

Russell, Estate of, 239

Sarhan v. Rothenberg, 336

Scott v. Terry, 14

Shelley v. Shelley, 248

Spado, In re Adoption of, 34

Speelman v. Pascal, 203

Strittmaters Estate, In re, 91

Teresa L. v. Sauk County, 339

Thorns Estate, In re, 80

Totten, In re, 253

Trimble v. Gordon, 27

Troy v. Hart, 35

Woodward v. Commissioner of Social Security, 29

Zschernig v. Miller, 133

WILLS AND TRUSTS

IN A NUTSHELL

FIFTH EDITION

INTRODUCTION

We begin our conversation about Wills and Trust law with an overview of terminology that you will see throughout this book and hear spoken while studying or practicing this subject.

The decedent is the person who died. When Michael Jackson moon-walked onto that great concert stage in the heavens on June 25, 2009, he became a decedent. So did Prince Rogers Nelson when he perished in his residence on April 21, 2016.

Ancestors are individuals, such as parents, grandparents, and great grandparents, who were born before the decedent. In Mr. Jacksons case, he left behind both parents, Katherine and Joe Jackson, as surviving ancestors.