Wills and Intestate Succession

Execution requirements: witnesses:

1. In the conscious presence of T; 2. By 2 OR MORE COMPETENT WITNESSES (Note: disinterested witnesses are NOT REQUIRED for a valid will); 3. Who saw T sign the will, or heard T acknowledge T's signature on it.

4 DOCTRINES APPLICABLE TO BOTH INTESTATE AND TESTATE ESTATES

1. Survivorship; 2. Ohio's slayer statute; 3. Disclaimor; 4. Lifetime gifts to heir or will devisee: advancements and satisfaction.

After the will is properly executed, T adds below T's signaure: "I give $10,000 to Sadie."

1. Will: valid; a dispositive provision added after the will's execution is an attempted codicil that does not affect the validity of the will. 2. Codicil: not valid (unless it is duly executed or the harmless error rule applies) (complies w/ all formalities).

Undue influence: elements

ELEMENTS: to prove undue influence, the contestant must establish that: 1. T was susceptible (the older and more weak willed and dependent the testator, the more likely a finding of undue influence); 2. The influencer had the opportunity to exert influence; 3. Improper influence was in fact exerted; and 4. The will shows the result (causation) of the influence. 5. Advice, acts of kindness, persuasion, argument, solicitation, appeals to duty or guilt, etc. do not constitute undue influence.

NOTE: if Chris' advancement had been greater than his intestate share under hotchpot?

He would NOT have to return the excess.

INTESTATE SUCCESSION: definition: heirs

Heirs: the persons entitled to inherit from an intestate decedent under the statutes of intestate succession.

Shares of descendants: if at least one survives the decedent:

If an intestate decedent was survived by any descendants, THEY WILL INHERIT ALL OF THE ESTATE THAT DOES NOT PASS TO THE SURVIVING SPOUSE.

If neither grandparent survives on one side:

If neither grandparent survives on one side, the descendants of those grandparents will divide their 1/2, by representation, and if there are also no surviving descendants of those grandparents, the whole estate will go to the other grandparents (or the survivor), or their descendants if neither of those grandparents survives D.

If there are no stepchildren or other descendants?

If no stepchildren or descendants → the estate will ESCHEAT to the state.

Hypo: Parent had 2 children, Pat and Chris. Parent gave Chris Blackacre (valued at $40,000). The next year, the Parent died. Suppose the writing requirement was met, but Chris predeceased the Parent, survived by a child, GC, who survived Parent. Is the advancement to Christ charged against GC's inheritance?

No, unless the writing provides otherwise. Pat and GC take $80,000 each.

Hypo: T, mistakenly believing his child, C, lied about an important matter, executed a will leaving T's estate to the Red Cross. May C successfully attack the will on that basis?

No. A will's validity is not affected by a mistake that induces its execution, unless (1) there is fraud or undue influence, or (2) the mistake negates testamentary intent [T must intend the instrument to dispose of T's property at death], such as if T mistakenly executes a will that T thought was a lease.

Hypo: What if the slayer intentionally and feloniously killed the victim, but plead guilty to involuntary manslaughter or was not prosecuted at all? May the slayer take?

No. When the killing is intentional and felonious, forfeiture can occur under the common law, even if the slayer statute is not applicable. If there is no criminal proceeding, the culpability of the slayer can be established in a civil proceeding (preponderance of the evidence) standard.

Hypo: assume GP, who died intestate, had one child, C, who predeceased GP. C had one natural child, NC; one adopted child, AC; and one stepchild, SC. GP's estate would be distributed how?

½ NC; ½ AC

Next of kin; stepchildren; escheat:

Next of kin; stepchildren; escheat: if there are no grandparents or their descendants surviving on either the maternal or paternal side, the estate will be distributed to D's "NEXT OF KIN" (D's closes blood relatives).

Problem: D died intestate, survived by a spouse, S; by one or more descendent, who were also descendants from another relationship. To whom should D's probate estate be distributed?

1. All to S. The surviving spouse also is the decedent's sole heir if all the decedent's descendants also are descendents of S. 2. NOTE: the surviving spouse's share is NOT reduced if he or she had descendants from another relationship.

Execution requirements: signed:

1. At the end; 2. By T, or by another (proxy) in T's conscious presence and at T's direction.

3 WAYS PROPERTY PASSES AT DEATH:

1. By will: through probate. 2. By the statutes of intestate succession: through probate. 3. By will substitute: outside of probate.

Part or all of D's estate will pass by the statute of intestate succession if:

1. D dies intestate, i.e., w/o a will; 2. D dies testate, but D's will does not dispose of the entire estate, or 3. D's will is successfully contested (and there is not an earlier will that takes effect). 4. Part or all of D's property may also pass under the intestacy rules if D dies w/ a will, but has a pretermitted heir.

Testamentary capacity: elements:

ELEMENTS: To validly execute a will, T must, AT THE TIME OF EXECUTION, be able to: 1. Understand the nature of the act in which she is engaged (i.e., that T is making a will to dispose of her property at death); 2. Comprehend generally the nature and extent of her property; 3. Hold in her mind the names and identities of those who have natural claims on her bounty; 4. Appreciate her relationship to the members of her family.

When may paternity be established?

- Paternity may be established: during the father's lifetime by judicial proceeding or by acknowledgment. - A presumption: that the mother's husband was the child's father arises if the mother was married and the child was born either during the marriage or w/in 300 days after the termination of the marriage (by death, divorce, annulment, or dissolution). - OHIO: it is not clear whether paternity may be established after the father's death, such as by DNA testing.

Hypo: (a) T executed T's will in the presence of witnesses A and B, but B inadvertently failed to sign B's name as a witness to the will. (b) T executed T's will in A's presence, but not in B's. When B entered the room, T asked B to witness T's will, and B then signed it. Is T's will validly executed?

1. Yes. Despite only one witness having signed the will, both witnesses saw T sign it and the harmless error statute applies. 2. Maybe. The harmless error statute will not apply b/c B did not see T sign the will. T's request that B witness the will, however, will constitute an acknowledgment of T's signature to B by T. If the other execution formalities are met, the will is validly executed.

Problem: Sis died intestate; her only surviving relatives were Bro #1, her half-brother (they shared only one common parent) and Bro #2, her whole blood brother (they shared 2 common parents). How should Sis's estate be distributed?

1. ½ → Bro #1; ½ → Bro #2. 2. OH: ½ SIBLINGS INHERIT EQUALLY W/ FULL BLOOD SIBLINGS

Hypo: Assume the will named Rita as the personal representative of T's estate, and Rita was one of the two witnesses. Is Rita an interested witness who will lose her right to receive compensation if she serves as PR?

No, the statute affects gifts to witnesses to a will, not compensation paid to a fiduciary for services rendered.

Ademption by satisfaction: generally

Ademption by Satisfaction: Common law rules are followed in Ohio for testate estates. Apply to general legacies (e.g., a gift of money), but not necessarily to residuary devises, whether the gift is in partial satisfaction of the testamentary gift depends on T's intent. (Unlike w/ advancements, a writing is not required for the satisfaction doctrine to apply.)

Problem: D died intestate, surviving by a spouse, S; BY NOT DESCENDANTS; and by various other family members. To whom should D's probate estate be distributed?

All to S. The surviving spouse is the decedent's sole heir if the decedent was not survived by any descendants.

Who may make a will?

At execution, T must be at least 18 years old, of sound mind (i.e., has testamentary capacity) and not under restraint (i.e., not under undue influence). T's age at death is irrelevant.

Hypo: Caregiver, C, provided care for T, who was elderly, in poor health, and unable to take care of herself. T, who had become dependent on C, executed a will devising T's estate to C. (Alternatively, T established a joint tenancy bank account w/ C, or designated C as the beneficiary of T's IRA). Upon T's death, T's heirs contested the will (or joint tenancy arrangement or beneficiary designation). What result?

B/c C was in a CONFIDENTIAL RELATIONSHIP (i.e., one in which trust and confidence is placed in the integrity and fidelity of another) w/ T, a rebuttable presumption that C exerted undue influence over T arises, the effect of which is to shift to C the burden of going forward w/ evidence that T acted voluntarily and that C's conduct was free from undue influence. (The presumption also arises if a lawyer prepares a will for a non-family member that names the lawyer (unethical) or a member of the lawyer's family as a devisee.)

Hypo: Amy's will devised her entire estate to her friend, Fred. Amy and Fred also owned a savings account as joint tenants w/ rights of survivorship. Fred survived Amy, but by only 4 days. Amy's closest relatives were her mother, who died 3 days after Amy, and her cousin, who survived Amy by more than 120 hours. Who takes Amy's probate estate? Who gets Fred's estate?

B/c Fred did not survive Amy by 120 hours; he is treated as having predeceased her. The devise to him therefore LAPSED. (B/c Fred was not a relative of Amy's; Ohio's anti-lapse statute does not apply.) B/c the will did not effectively dispose of the residue, it passes by intestacy. The 120 hour survivorship rule also prevents Amy's mother from taking by intestacy. Thus, Amy's cousin takes. Ohio's 120 hour survivorship rule also applies to nonprobate assets. Thus, Amy's ½ of the savings account also goes to Amy's cousin. (Fred's ½ would go through his estate to his intestate heirs or will devisees.)

What property rights do spouse's have in the estate of a living person?

B/c of the special statutory protections afforded to surviving spouses that cannot be defeated by a decedent's will, a spouse's rights w/ respect to the other spouse's property are more than mere expectancy (less than full fledged property rights) and can be released.

Hypo: T owned BA and a coin collection. T's will provides: "I give BA to Ann and my coin collection to Ben." There is substantial, uncontroverted extrinsic evidence that T intended to devise BA to Ben and the coin collection to Ann. What result?

BA: to Ann. Coin collection: to Ben.

What if there had been a third witness to the will?

Berta would take her $25,000.

UNDUE INFLUENCE: DEFINITION AND BURDEN OF PROO

DEFINITION AND BURDEN OF PROOF: Undue influence is a form of coercion (mental/psychological) that destroys T's free will and produces a will that reflect the desires of the influencer, rather than T. - Burden of Proof: is on the contestant.

Disclaimer: generally

DISCLAIMER: no one can be forced to accept property, whether by will, by intestate succession, by operation of law (e.g., joint tenancies), or by beneficiary designation (e.g., life insurance). An intestate heir, will devisee, or other beneficiary who refuses to accept ALL or PART of the property does so by DISCLAIMING the unwanted property.

Share of other family members: descendants of parents.

Descendants of parents: if neither of D's parents survive D either, D's brothers and sisters, and descendants of deceased brothers and sisters by representation, will take.

INTESTATE SUCCESSION: definition: devisees

Devisees: beneficiaries under the will of a living testator.

Disclaimer: effect of disclaimer:

Effect of disclaimer: Generally, a disclaimer, which is IRREVOCABLE, results in the property passing as if the disclaimant predeceased the descendant (as a result, when there is a disclaimer by a will devisee, consider application of the anti-lapse statute).

Examples of will substitutes

Examples include: 1. Life insurance: proceeds pass to the designated beneficiary by K; 2. Joint tenancy w/ rights of survivorship; 3. Assets in trust that pass to beneficiaries named in the trust instrument.

Execution requirements: Generally

Except for oral wills, to be validly executed in Ohio, a will and each codicil (amendment, revision, change; i.e., modification or supplement) to it must be: 1. In writing; 2. Signed; 3. Witnessed.

FACTORS NOT DETERMINATIVE OF INCAPACITY:

FACTORS: T may have capacity even if: 1. T had been adjudicated incompetent and had a guardian appointed for him (different legal test); 2. T was unable to enter into a valid K; 3. T could not read or write; 4. T was old, frail, and could not see or hear; 5. T's will made an unnatural or unjust disposition of her estate; 6. T was eccentric; or 7. T had a poor memory, was forgetful and occasionally did not recognize people of long acquaintance. 8. These MAY SUPPORT a finding of lack of testamentary capacity, but they are NOT DETERMINATIVE. (Don't jump to conclusions, apply 4-factor test for capacity and consider these factors).

Hypo: T's will provides: "I give my farm to my child, Favorite. I give my residue to my friend, Fred. Under no circumstances shall my child, Leftout, receives any part of my estate." T is survived by Favorite and Leftout, but not by Fred. What result?

Farm to Favorite. Residue: the residuary gift to Fred lapses [fails] b/c he predeceased T (and the anti-lapse statute does not apply to gifts to friends). Thus, the residue is undisposed of by the will and passes by intestacy. The words of disinheritance in the will are not effective: when T dies partially intestate, the intestate property passes under the intestacy statutes, not under the will. Thus, the residue goes ½ to Favorite and ½ to Leftout.

Adopted, stepchildren, and foster children: generally

Generally, for intestate succession purposes, adopted children are treated just like natural born children of the adopting parents. Thus, an adopted child and her descendants can inherit from AND THROUGH the adopting parents (and their kin) can inherit from and through the adopted child. Stepchildren and foster children, who have not been adopted, enjoy no such rights.

Problem: D and X owned a savings account as joint tenants w/ survivorship rights. X was the beneficiary of an insurance policy on D's life. D's will devised the savings account and insurance proceeds to Z (or D died intestate and Z was D's heir). Who takes?

Generally, nonprobate assets are not subject to the decedent's will, if there was one, or the statutes of intestate succession, if there was no will. Thus, X takes.

Can adopteds inherit through their natural parents?

Generally: adopteds (and their descendants) CANNOT inherit from or through their NATURAL PARENTS, and their natural parents (and their kin) cannot inherit from or through their natural child who has been adopted by others (Think infant adoption).

Mistake in execution: generally:

Generally: compliance w/ execution formalities is required in Ohio. If the following are shown w/ CLEAR AND CONVINCING EVIDENCE, however, harmless error in the execution of a will is excused: 1. The decedent prepared, or caused to be prepared, the document purporting to be a will; 2. The decedent signed the document w/ intent that it be her will; and 3. Two or more witnesses saw the decedent sign the will.

Share of other family members: grandparents or their descendants

Grandparents or their descendants: next in line are the grandparents: ½ to paternal grandparents (or surviving grandparent) and ½ to the maternal grandparents (or surviving grandparents).

ANTE-MORTEM PROBATE: DELCARATION OF VALIDITY OF WILL DURING TESTATOR'S LIFETIME: Hearing and judgment

HEARING AND JUDGMENT: The probate court conducts a hearing to determine if (1) the will was duly executed; (2) T had testamentary capacity; and (3) T was free from undue influence. If those findings are made, the court issues a judgment to that effect. Generally, at T's subsequent death, the will cannot be contested on these grounds.

Execution requirements: in writing:

Handwritten or typed.

How to disclaim?

How to disclaim? For a disclaimer to be effective for tax purposes, it must be made w/in 9 months of D's death (but you cannot accept the property and later disclaim it w/in the 9 month period). The 9-month rule does not apply under Ohio law for property law purposes. A guardian for an incompetent or minor, and a personal representative for a decedent, may (but only w/ the probate court's consent) disclaim on behalf of the ward or the decedent.

If the will does not include a patent or latent ambiguity

If the will does not include a patent or latent ambiguity: extrinsic evidence is not admissible to change the meaning of the words T used in the will (the "plain meaning" or "no extrinsic evidence" rule).

If there are no next of kin?

If there are no next of kin → the estate will be distributed to D's stepchildren or their descendants, per capital w/ representation, if any.

Is it an advancement?

Is it an advancement? At common law, the presumption was yes, b/c parents were presumed to want to treat their children equally. But in OHIO, a lifetime gift is not an advancement unless there is a contemporaneous writing of the donor setting forth that intent, or a writing (not necessarily contemporaneous) of the donee acknowledging the gift as a part of the donee's inheritance. Advancements are not limited to children, but may also be made to other heirs.

Second, are the devises to Lee and Berta affected?

In Ohio, devises to witnesses are void, BUT if the witness would have shared in the estate if the will had not been executed (by intestacy or under a prior valid will), they take the [lesser of what they would have received] → the excess, w/o the will and what they were left under the will (i.e., interested witnesses lose only the extra benefit they would have received under the will they witness.)

Interested Witnesses: definition

Interested Witnesses: are those who receive gifts under the will.

Hypo: Does T have testamentary capacity if (a) T was an alcoholic and/or drug addict, (b) T suffered from an insane delusion, or (c) a court had determined that T was incompetent before T executed the will?

It depends: (1) Go through the 4-part test). If T was so under the influence at the time of execution that she could not pass the 4-part tests, no. Otherwise, yes. (2) Generally, a senile or insane person who can pass the 4-part test during a LUCID INTERVAL can have testamentary capacity. An insane delusion (i.e., a false belief no rational person would hold based on the information available) justifies setting aside the will only if: A. It operated at the time of execution; B. To affect the provisions of the will. - A judicial finding of incompetence raises a presumption of lack of testamentary capacity that can be rebutted if there is sufficient evidence T had testamentary capacity.

If the gift was not an advancement?

It is ignored and each child receives $80,000.

ANTE-MORTEM PROBATE: DELCARATION OF VALIDITY OF WILL DURING TESTATOR'S LIFETIME: Necessary Parties

NECESSARY PARTIES: the petition must name as parties (1) all beneficiaries under the will and (2) all persons who would inherit from T if T died intestate on the date of filing the petition.

Does Berta take?

No; her devise is void and w/o the will she would not have received anything.

Nonmarital children:

Nonmarital Children: a child born out of wedlock may inherit by intestate succession from and through the mother, but may inherit from and through the father ONLY IF paternity is established.

Hypo: Lawyer L, takes T's will to T's home for T to execute. T signs it and L signs it as a witness. L returns to L's office w/ the will and has her secretary, S, call T. T confirms that T signed the will and S signs it as a witness. Valid?

Not valid. The witnesses must sign in T's conscious presence. It is not necessary that T be able to see S sign, but S must be w/in the range of T's senses, excluding by telephonic, electronic, or other distant communication.

The will is handwritten by T, but it is not witnessed?

Not valid; holographic wills are not valid in Ohio.

Before T signs, there is a dispositive provision (e.g., "I give $10,000 to Sadie") below the place where T signs?

Not valid; unless the harmless error rule applies. If a will is not signed at the end, the effect is NOT simply to exclude the provisions after the signature; rather, the will is invalid.

Ohio's slayer statute: generally

OHIO'S SLAYER STATUTE: A slayer may not benefit from a death caused by his intentional and felonious act. Rather, property the slayer would have received as a result of the victim's death passes AS IF THE SLAYER PREDECEASED THE VICTIM (if the slayer was a devisee under the victim's will, consider the application of the anti-lapse statute).

Share of surviving spouse: entire estate: Ohio

OHIO: a cohabitant who was not formally married to the decedent generally is not a "surviving spouse," as common law marriages are not longer recognized (but such marriages that were valid in 1991, when the law changed, remain valid). 1. Same-sex marriages are not recognized in Ohio.

DESIGNATED HEIRS: Ohio

OHIO: a person may make a written demand before a probate judge designating an heir. If the designator, D, then dies INTESTATE, the designated heir, DH, inherits from D AS IF HE WERE D'S CHILD. (But DH's descendants would not inherit by representation as heirs of D if DH predeceased D. Also, DH cannot inherit through D. Thus, if D's parent, P, died intestate after D's death, DH would NOT inherit from P.) Unlike w/ adoptions at any time after one year, the designator MAY REVOKE the designation.

Ohio system of dividing the estate:

OHIO: the descendants' part of the estate is divided among them under the "PER CAPITA w/ REPRESENTATION" system (referred to as "PER STIRPES"). - OH per capita w/ representation system: the estate is divided into shares at the first generation where there is a survivor (in equal amounts to all living and those w/ living descendants). Move the shares down if necessary, and divide accordingly.

Share of other family members: parents

Parents: if D is not survived by a spouse or by any descendant, the estate is distributed to D's parents (or surviving parent).

Posthumous child:

Posthumous child: a child conceived before, but born after, D's death and inherits as if born during D's lifetime.

The witnesses are minors?

Probably not valid (but consider the harmless error rule; by statute in Ohio, witnesses to a will are required to be at least 18.

Ohio's slayer statute: property subject to forfeiture

Property subject to forfeiture: Like Ohio's 120 hour survivorship statute, the slayer statute applies not just to probate assets, but ALSO TO NONPROBATE ASSETS such as joint tenancies and insurance proceeds.

What property rights do prospective heirs or beneficiaries have in the estate of a living person?

Prospective heirs and beneficiaries do not have any property rights in the estate of the living person; rather, they have a MERE EXPECTANCY that at common law could not be released.

INTESTATE SUCCESSION: definition: prospective heirs

Prospective heirs: persons who would be heir of a living person if he or she died intestate.

Ohio's slayer statute: reach of statute

Reach of statute: Ohio's slayer statute applies to one who (1) is convicted of; (2) pleads guilty to; or (3) by reach of insanity is found not guilty of, the murder or voluntary manslaughter of the decedent. Also covered are persons who are indicted for such a crime, but who are found incompetent to stand trial.

If D also has one ore more descendants who are not descendants of S?

S receives 1/3 of the balance. (ALL of D's descendants will share the remaining 2/3 by representation).

If S was not the natural or adoptive parent of at least one of D's children (who survives D or has one or more descendants who survive D)?

S receives the first $20,000.

If S is the natural or adoptive parent of at least one of D's children (who survives D or has one or more descendants who survive D)?

S receives the first $60,000.

If D was survived by only one child (or by one or more descendants of only one child)?

S receives ½ of the balance.

Survivorship: Generally

SURVIVORSHIP: Generally, in Ohio, to receive probate property by will or intestate succession (or to take nonprobate property), a person must survive the decedent by at least 120 hours (5 days).

Stepparent exception

Stepparent Exception: when (1) a natural parent dies w/o his or her parental rights having been terminated; (2) the other natural parent remarries; and (3) the new spouse adopts the child, the adopted child inherits through the deceased natural parent, as well as FROM AND THROUGH the other natural parent and the adopting parent. - The exception does not apply if the natural parents get divorced, parent 1 gets remarried, parent 2 loses parental rights, and the stepparent adopts the child. In that case, the child can still inherit from parent one and then from stepparent.

The witnesses to T's will are not together when T signs or acknowledges, or when each of them signs as a witness?

Valid; the witnesses need not attest or subscribe at the same time or in each other's presence (need not be together).

Problem: D died intestate, survived by a spouse, S; by two ore more children (or their descendants) from another relationship; but by no children (or descendants of deceased children) from the marriage w/ S. What is S's share?

The first $20,000, plus 1/3 of the remainder of the estate.

Problem: D died intestate, survived by a spouse, S; by ONE child (or descendants of one child) form another relationship; but by no children (or descendants of deceased children) from the marriage w/ S. What is S's share?

The first $20,000, plus ½ of the remainder.

Problem: D died intestate, survived by spouse, S; by one or more children from another relationship; and by one or more children of D and S. What is S's share?

The first $60,000, plus 1/3 of the remainder of the estate.

ANTE-MORTEM PROBATE: DELCARATION OF VALIDITY OF WILL DURING TESTATOR'S LIFETIME: WHO MAY INITIATE:

WHO MAY INITIATE: The testator may petition the probate court for a judgment declaring the validity of her will.

Hypo: T's 2006 will provides: "I give $30,000 to each of my children, Ann and Ben. I give the residue of my estate to my spouse, S." In 2007, T makes a gift $20,000 to Ben. T dies in 2008. What is Ben's share of the estate?

The issue is whether the gift is in partial satisfaction of Ben's share of the estate (i.e., payment of $20,000 of the $30,000 legacy before T's death). Ohio follows the common law rules of ademption by satisfaction for testate estates. Here, the gift is to one of T's children, and the will treats them equally, there is a presumption the gift was in partial ademption by satisfaction. Thus, the likely result is Ben takes $10,000.

Hypo: Parent had 2 children, Pat and Chris. Parent gave Chris Blackacre (valued at $40,000). The next year, Parent died intestate w/ a $160,000 probate estate; her only heirs were Pat and Chris. How should her estate be distributed?

The only issue is whether the gift was an ADVANCEMENT. If so, through a process called HOTCHPOT, the gift is added to Parent's $160,000 estate (for a total of $200,000), before the total is divided into $100,000 shares for each child. Chris is treated as having already received a $40,000, w/ the result that the $160,000 estate is divided $100,000 for Pat and $60,000 for Chris.

For witnesses, who does the gift statute apply to?

The statute applies to a gift "to a person who is one of only 2 witnesses to a will."

A witness, W, did not see T sign the will. T said to W: "Please witness my will," but T did not explicitly acknowledge her signature to W?

Valid, acknowledgement of the will is sufficient. (Further, T's acknowledgment of the signature or will need not express, but can be inferred from T's conduct or the surrounding circumstances).

A witness is the attorney who drafted the will, or a personal representative or trustee named in the will, or a person who signs for T at T's request?

Valid.

The witnesses sign immediately before T?

Valid; T should sign first (the witnesses are to attest to T's signature), but it is not fatal that the witnesses do, IF all the signatures are made in a CONTINUOUS TRANSACTION (docs going around the table).

The witnesses sign below T?

Valid; T signed at the end of the will. The witnesses' signatures are not part of the will.

A weak, but conscious, T receives assistance in signing?

Valid; it is sufficient if T intends the signature or mark to validate the will, even if all T does is touch the pen while the signature or mark is being made (as long as intending to sign will).

Before T signs, there is an administrative provision (e.g., "My executor need not give bond") below the place where T signs?

Valid; non-dispositive provisions below T's signature are treated as surplusage and of no effect.

Hypo: Is the will valid if: T signs using a nickname, initials, or a mark, or If what T wrote is not legible?

Valid; the signature requirement is that the name or mark be made by T w/ the intent to validate the instrument as T's will.

Share of surviving spouse: entire estate: what is the threshold question

Who is a surviving spouse?

Why disclaim?

Why disclaim? To (1) avoid gift taxes, and (2) avoid creditor's claims. Note, though, that in Ohio the disclaimer of an inheritance W/ THE INTENT TO DEFRAUD A CREDITOR is a fraudulent conveyance that can be set aside by the disclaimant's creditor.

So does Lee take?

Yes, $25,000, b/c his $25,000 devise is less than what he would have received as T's sole heir w/o the will (the entire estate).

Hypo: Derek and Cybil have one child, Pat. After Derek dies, Cybil marries Joe, who adopts Pat. Derek's mother than dies intestate and unmarried. Is Pat her heir?

Yes, b/c of the STEPPARENT EXCEPTION.

Hypo: T's will (the only one T ever executed) provided: "I give $25,000 to Lee, $25,000 to Berta, and the residue to the Red Cross." Lee and Berta were the 2 witnesses. Lee was T's sole heir. Do Lee and Berta take under the will? First, is the will valid?

Yes, interested witnesses don't affect the validity of the will.

Hypo: T, elderly, weak-willed, and dependent on a caretaker, C, for T's care executed a will leaving T's estate to C. T did so b/c C told T that T's heir, her niece, N, was lavishly spending T's money and intended to put T in a nursing home for the poor. C knew that neither statement was true. May N successfully contest T's will?

Yes. Fraud occurs when T is willfully deceived and induced by misrepresentations and deception to make, not make, or revoke a will (or include a devise in a will) that she would not have done but for the misrepresentations and deception.

Hypo: T, whose intestate heirs were distant relatives whom she did not know, devised her estate to various friends and charitable organizations. Valid will?

Yes. The issue is whether T had sufficient mental capacity to recognize family members w/ a natural claim to her bounty, not whether T knew distant relatives.