KEEPING CURRENT P R O B AT E CASES DIVORCE: Statute revokes only gifts 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 after the execution of the will and died two years after the divorce never having made a new will. Minnesota’s revocation on divorce statute, Minn. Stat. § 524.2804, automatically revokes gifts 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 district 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 effect as if the exspouse 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: Gift 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 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.
Keeping Current—Probate offers a look at selected recent cases, tax rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
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 percent of the spouse’s estate, and deposited it into the child’s account two days before the spouse’s death. The spouse was intestate. 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 gift and not subject to the surviving 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 gift in relation to the total estate raised the presumption that the gift was fraudulent, a presumption the child failed to rebut. FIDUCIARY DUTY: Authority to make non-pro rata distributions allows selfdealing. 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 sibling were the beneficiaries of their parent’s trust. After the parent died, the trustee decided to distribute the trust real property 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 coexecutors 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 themselves 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 distributions 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 intentional interference with inheritance rights. In an opinion thoroughly discussing the law of other states, the Supreme Court of Idaho in Nelsen v. Nelsen, 508 P.3d 301 (Idaho 2022), refused to recognize the tort of intentional interference with inheritance rights as part of the law of the state because to do so would undermine 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 prevent the application of the anti-lapse statute. The testator devised the residuary estate to the testator’s two children “share and share alike.” The terms of the will expressly stated that the omission of any gift to any relative other than those mentioned in the will was “purposely made.” One of the testator’s children predeceased 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 gift to the testator’s grandparent or a lineal descendant of a grandparent unless a “contrary intention 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
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 copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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November/December 2022
