ESSAY QUESTION (one hour)
Floyd Moran is a self-made millionaire who founded
the Mor-Mart discount department stores. His wife, Emma Mae, had
one daughter, Southern Belle, from a previous marriage. Floyd had no
children of his own. Floyd supported Southern Belle, but he never
adopted her. After 30 years of marriage, Emma Mae died. She
left her entire estate to Southern Belle. By this time, Southern
Belle had finished college and was a successful computer
programmer. About once a year she would visit Floyd.
Floyd's only will up to this point was a form will
that he had gotten at a stationery store shortly after getting
married. At the top it stated "LAST WILL AND TESTAMENT OF Floyd
Moran" (underlined words were written in ink in Floyd's
handwriting; the rest of the will was part of the typeset form).
Further down, the form stated "I DISTRIBUTE MY ESTATE AS FOLLOWS" and
Floyd wrote: "$10 goes to cousin Elmer, my only living relative, so he
knows I did not forget him. All the rest of my possessions, real
and personal, go to my wife, Emma Mae, and her daughter, Southern
Belle." Floyd dated (May 3, 1970) and signed the form. He
then told his secretary: "Look, honey, this here's my will and it needs
to be signed by two people on them dotted lines. Take care of
it." The secretary left Floyd's office and took the form to the
delivery boy's cubicle, told him it was Floyd's will, and they then
both signed and dated it.
Fast forward to 2000. Emma Mae has died.
Floyd, who was now in his 70s, very lonely, and in failing health,
decided to sell his company to its largest competitor. He was
assisted in this endeavor by the merger and acquisitions lawyers of the
firm of Smith, Cohen, Kim & Lopez. Floyd eventually sold his
company for $60 million. During the negotiations, he interacted
extensively with Candy Babinsky, a young associate at the Smith
firm. Their friendship blossomed, and before long, Candy moved
into Floyd's mansion. They did not marry, however. Opinions
on the relationship were decidedly mixed. Floyd told people that
"Candy's the best darn thing that ever happened to me," while Southern
Belle referred to her as "that gold-digging shyster."
Shortly after the one-year anniversary of their
relationship, Floyd died. Soon thereafter, Candy offered a will
for probate. It appeared (i.e., you should accept as proven) that
Floyd tore up his first will, i.e., the form will discussed
above--after
Candy moved in with him. He then had Candy draft a second will
(the one she offered for probate), which appointed her to be the
executor and gave Floyd's entire estate to her. The will
explained that Floyd left nothing to Southern Belle because she was not
his real daughter and had largely ignored him after her mother
died. It also appeared that Mr. Lopez, a probate partner at the
Smith firm, had reviewed the will and found it satisfactory, although
he did not talk to Floyd at that time. When Floyd later came into
the office to sign it, Lopez took him and Candy aside and asked Floyd
if this new will was what Floyd wanted; Floyd nodded
affirmatively. The will was then properly attested, and there is
no doubt that Floyd had mental capacity when he executed it.
The governing law is that of the State of Loyola,
which has adopted the rules and principles that we discussed in
class.
Please answer the following questions:
1. Should the second will (the one
Candy offered for probate) be probated? Please concentrate on
whether the second will is legally valid, rather than on possible
ethical or disciplinary issues [about 40%].
2. If the second will is not
probated, was the first one validly executed? [about 40%]
3. Assuming the first will was
validly executed, and the second will is invalid, should the first will
be probated? [about 20%]
Do NOT discuss the details of intestacy in case you
decide that both wills are invalid (you can simply state that the
estate will be distributed in accordance with the rules of intestate
succession). If it matters, the jurisdiction has abolished the
common-law no residue of a residue rule.