KEEPING CURRENT P R O B AT E CASES BEQUESTS: Gift of proceeds from sale of specific property is a specific bequest. The decedent’s inter vivos trust made a series of general bequests of sums of money and then granted the decedent’s nieces and nephews a six-month option to purchase any real estate the decedent owned at death. Any property not purchased was to be sold and the proceeds divided among the nieces and nephews surviving the settlor and the children of those who predeceased. The nieces and nephews brought a declaratory judgment proceeding seeking a declaration that the provision created a specific bequest so that the sale proceeds would belong to them. The trustee and other beneficiaries opposed, contending that the provision was a demonstrative bequest and should be treated as a general bequest so that the proceeds of the sale would be available proportionately to all beneficiaries of general bequests. The trial court granted summary judgment to the defendants in the declaratory judgment proceeding, and on appeal the Illinois intermediate appellate court reversed in Bruno v. Knippen, No. 2-22-0164, 2023 WL 2155408 (Ill. App. Ct. Feb. 22, 2023), holding that the language created a specific bequest because it gave a fund to be created by the sale of identified real estate. COMMON LAW MARRIAGE: Removal of impediment does not affect existing common law marriage. The District of Columbia Court of Appeals held in In re Estate of Jenkins, 290 A.3d 524 (D.C. 2023), that if a couple makes an express mutual agreement “in words of the present tense” to be married and the Keeping Current—Probate Editor: Prof. Gerry W. Beyer, Texas Tech University School of Law, Lubbock, TX 79409, gwb@ ProfessorBeyer.com. Contributors: Julia Koert, Paula Moore, Prof. William P. LaPiana, and Jake W. Villanueva.
Keeping Current—Probate offers a look at selected recent cases, tax rulings, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
agreement is followed by cohabitation, even though there is a known or unknown legal impediment to the marriage at the time, removal of the impediment does not affect the agreement so long as the couple continues to cohabit. EXECUTOR’S DUTY TO CREDITORS: An executor owes no duty to estate creditors. The Supreme Court of Texas in its opinion in Austin Trust Co. v. Houren, 664 S.W.3d 35 (Tex. 2023), held that an independent executor does not owe fiduciary duties to the creditors of the estate. In this case, it meant that the validity of releases of the estate executed by beneficiaries of trusts created by the testator’s exercise of a power of appointment is judged under general contract law. LIFE INSURANCE: Change of beneficiary accomplished through substantial compliance. The insured attempted to change the beneficiary of life insurance from the insured’s estranged spouse to their children by faxing the form the insurer provided showing the change of beneficiary in the insured’s handwriting but lacking the insured’s signature and date. The insurer sent a letter to the insured stating the form needed to be signed and dated, but there was no evidence that the insured received this letter. The trial court issued a declaratory judgment in favor of the children, and, on appeal, the Arkansas Supreme Court affirmed in James v. Mounts, 660 S.W.3d 801 (Ark. 2023). The court held that by completing and returning the form and in light of the evidence that the insured had
not received the letter regarding the absence of a signature and date, the insured had substantially complied with the contractual requirements for changing the beneficiary. MARRIAGE: Putative spouse rather than legal spouse has community property rights. The decedent’s first marriage was never dissolved, making the second marriage a nullity. Under Louisiana Civil Code art. 96, a null marriage produces “civil effects” in favor of a party contracting in good faith including the application of the community property regime. In Succession of Burns, 354 So. 3d 1197 (La. 2022), the Louisiana Supreme Court overruled precedent and held that a surviving putative spouse who acted in good faith is the sole surviving spouse for purposes of succession to community property. POUR-OVER WILLS: Disinheritance in a will extends to the trust receiving the pour-over property. The decedent executed a pour-over will and revocable trust which, after receiving the pour-over, would terminate on the decedent’s death and be distributed outright to the decedent’s four children. The trust could be amended by “a signed writing.” Approximately 18 months later, the decedent executed a new will disinheriting one of the children. The decedent did not amend the trust to reflect the disinheritance. After the decedent’s death, the personal representative brought a declaratory judgment action seeking confirmation of the disinheritance. The court in IMO Amelia Noel Living Trust, No. 2020-1107-SEM, 2022 WL 3681269 (Del. Ch. Aug. 16, 2022), aff ’d, 293 A.3d 1000 (Del. 2023), held that the will amended the trust to effect the disinheritance; to hold otherwise would fail to carry out the decedent’s testamentary intent. TRUSTEE REMOVAL: Trustee has standing to question dismissal. The beneficiaries’ first attempt to remove the trustee and the successor trustee was ineffective because it did not conform to the terms of
Published in Probate & Property, Volume 37, No 5 © 2023 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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September/October 2023
