Keeping Current-Probate

• Pages: 26-29
• Date: 01 November 2022
• Subject Matter: Derecho Público y Administrativo

November/December 2022

26

Published in Probate & Property, Volume 36, No 6 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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KEEPING CURRENT

PROBATE

Keeping Current—Probate Editor: Prof.

Gerry W. Beyer, Texas Tech University

School of Law, Lubbock, TX 79409, gwb@

ProfessorBeyer.com. Contributors: Claire G.

Hargrove, Paula Moore, Kerri G. Nipp, Prof.

William P. LaPiana, and Jake W. Villanueva.

CASES

DIVORCE: Statute revokes only gis

to ex-spouse, not other ex-relatives. The

testator devised the residue of the estate

to the testator’s spouse and, if the spouse

did not survive the testator, one-half to the

testator’s heirs and one-half to the heirs of

the spouse. The testator divorced 24 years

aer the execution of the will and died

two years aer the divorce never having

made a new will. Minnesota’s revocation

on divorce statute, Minn. Stat. § 524.2-

804, automatically revokes gis to the

ex-spouse but not those to the ex-spouse’s

relatives. At the time of the testator’s

death, the ex-spouse’s parents were the

ex-spouse’s heirs, and they objected to the

probate petition the nominated executor

f‌iled that did not mention them. The dis-

trict court granted the executor’s motion

for summary judgment and on appeal,

the intermediate appellate court reversed

in Matter of Estate of Tomczik, 976 N.W.2d

143 (Minn. Ct. App. 2022), review granted.

The court found that the statute requires

that the will be given eect as if the ex-

spouse had predeceased the testator and,

in that situation, one-half the residue is

unambiguously devised to the ex-spouse’s

heirs. The Chief Judge dissented on the

grounds that, because the ex-spouse is still

alive, the heirs are not known.

DOWER: Gi of more than one-half of

estate is fraud on spouse’s dower rights.

Kentucky law entitles a surviving spouse

to one-half of the decedent’s personal

property under Ky. Rev. Stat. § 392.020.

Simpson v. Wethington, 641 S.W.3d 124

(Ky. 2022), involved a blank check the

spouse gave to the spouse’s child with

directions to “wait until anything ever

happened” to the spouse and then use

the check to “take every dime [the spouse]

had” because it was “the only way” the

spouse’s children would receive anything.

The child completed the check for the

amount in the account, equal to 52 per-

cent of the spouse’s estate, and deposited

it into the child’s account two days before

the spouse’s death. The spouse was intes-

tate. The surviving spouse claimed dower

rights in the closed account, and both

the trial court and intermediate appellate

court agreed that the check was a valid

inter vivos gi and not subject to the sur-

viving spouse’s dower right. The Kentucky

Supreme Court reversed, holding that the

legislature has not abolished the common

law rule against fraudulent deprivation

of dower and that the size of the gi in

relation to the total estate raised the pre-

sumption that the gi was fraudulent, a

presumption the child failed to rebut.

FIDUCIARY DUTY: Authority to make

non-pro rata distributions allows self-

dealing. In Culliss v. Culliss as Trustee of

Julia A. Culliss Trust, 514 P.3d 376 (Kan. Ct.

App. 2022), a trustee and the trustee’s sib-

ling were the benef‌iciaries of their parent’s

trust. Aer the parent died, the trustee

decided to distribute the trust real prop-

erty to the trustee as benef‌iciary and to

distribute cash equal in value to the real

property to the sibling. In Bennett v. Estate

of King, 875 S.E.2d 46 (S.C. 2022), the co-

executors of the parent’s will and another

child were the residuary benef‌iciaries.

The co-executors decided to distribute

improved real property to themselves

and unimproved real property to them-

selves and the other benef‌iciary so that

all received equal value. In both cases,

the non-f‌iduciaries objected, and, in both

cases, they were unsuccessful because

each instrument included terms giving

the f‌iduciary authority to make distribu-

tions in cash or in kind and, if in kind,

with no requirement to make pro-rata

distributions.

INTENTIONAL INTERFERENCE

WITH INHERITANCE RIGHTS:

Idaho refuses to recognize tort of inten-

tional interference with inheritance

rights. In an opinion thoroughly discuss-

ing the law of other states, the Supreme

Court of Idaho in Nelsen v. Nelsen, 508

P.3d 301 (Idaho 2022), refused to recog-

nize the tort of intentional interference

with inheritance rights as part of the law

of the state because to do so would under-

mine freedom of testation. In addition, an

alternative remedy, the constructive trust,

is readily available to those who wish to

pursue assets allegedly obtained through

undue inf‌luence.

LAPSE: Express omission of relatives

not mentioned in the will does not pre-

vent the application of the anti-lapse

statute. The testator devised the residu-

ary estate to the testator’s two children

“share and share alike.” The terms of the

will expressly stated that the omission of

any gi to any relative other than those

mentioned in the will was “purposely

made.” One of the testator’s children pre-

deceased the testator and was survived

by a child who survived the testator. The

Alabama anti-lapse statute, Ala. Code

§ 43-8-224, applies to a gi to the testa-

tor’s grandparent or a lineal descendant

of a grandparent unless a “contrary inten-

tion is indicated by the will as provided in

Ala. Code § 43-8-222. In Shirley v. Dawkins,

No. 1200706, 2022 WL 2286416 (Ala.

June 24, 2022), the Supreme Court of

Keeping Current—Probate

oers a look at selected recent

cases, tax rulings and regulations,

literature, and legislation. The

editors of Probate & Property

welcome suggestions and

contributions from readers.